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Carnegie  Endowment  for  International  Peace 

DIVISION  OF  INTERNATIONAL  LAW 


THE 

HAGUE  COURT  REPORTS 


COMPRISING  THE  AWARDS,  ACCOMPANIED  BY  SYLLABI, 
THE  AGREEMENTS  FOR  ARBITRATION,  AND  OTHER 
DOCUMENTS  IN  EACH  CASE  SUBMITTED  TO  THE  PER- 
MANENT COURT  OF  ARBITRATION  AND  TO  COMMISSIONS 
OF  INQUIRY  UNDER  THE  PROVISIONS  OF  THE  CONVEN- 
TIONS OF  1899  AND  1907  FOR  THE  PACIFIC  SETTLEMENT 
OF  INTERNATIONAL  DISPUTES 


EDITED  WITH  AN  INTRODUCTION 

BY 

JAMES  BROWN  SCOTT 

DIRECTOR 


^NEW  YORK 

OXFORD  UNIVERSITY  PRESS 

AMERICAN  BRANCH  : 35  WEST  32nd  STREET 
London,  Toronto,  Melbourne  and  Bombay 
HUMPHREY  MILFORD 
1916 


CARNEGIE 

COPYRIGHT  1916 

BY  THt 

ENDOWMENT  FOR  INTERNATIONAL  PEACE, 
WASHINGTON,  D.  C. 

Byron  9.  Adams,  Printer 
WASHINGTON,  D.  C. 


3 1 . I 
"o  ev',  \ 


PREFACE 

This  publication,  as  indicated  on  the  title-page,  comprises  “awards, 
accompanied  by  syllabi,  the  agreements  for  arbitration,  and  other  docu- 
ments in  each  case  submitted  to  the  Permanent  Court  of  Arbitration 
and  to  Commissions  of  Inquiry  under  the  provisions  of  the  Conven- 
tions of  1899  and  1907  for  the  p>acific  settlement  of  international  dis- 
putes.” It  was  the  purpose  in  preparing  and  publishing  this  volume 
to  meet  the  numerous  requests  received  by  the  Division  of  International 
Law  of  the  Endowment  for  accurate  information  respecting  the  vari- 
ous cases  which  have  come  before  tribunals  of  the  Permanent  Court 
or  before  commissions  of  inquiry  under  the  provisions  of  the  above- 
named  Conventions. 

In  pursuance  of  this  purpose,  a syllabus  was  prepared  on  each  case 
giving  in  as  brief  form  as  possible  the  essential  facts  and  holdings 
of  the  tribunal  or  commission  of  inquiry.  The  awards  or  findings, 
together  with  the  agreements  for  arbitration  or  inquiry  and  other  essen- 
tial documents,  have  been  obtained  in  translated  form  from  the  most 
reliable  sources  available,  appropriate  references  to  which  appear  in 
footnotes  to  the  respective  documents.  Where  translations  have  been 
obtained  from  official  sources,  they  have  been  reproduced  in  their 
official  form,  except  that  a few  obvious  misprints  and  an  occasional 
mistranslation  have  been  corrected.  Where  translations  have  been 
obtained  from  unofficial  sources,  they  have  been  edited  to  such  a 
degree  as  seemed  necessary,  but  they  are  essentially  reproductions  of 
the  original  translations.  In  some  cases,  however,  where  there  were 
no  official  or  other  sources  from  which  to  obtain  them,  the  translations 
were  made  by  the  Endowment.  It  will  be  observed  that  in  some  in- 
stances translations  of  quotations  are  not  verbally  identical  with  the 
translations  of  the  original  passages  quoted.  This  is  due  to  the  fact 
that  different  persons  made  the  translations.  Since  the  sense  is  unaf- 
fected by  these  variations,  it  was  not  deemed  advisable  to  harmonize 
the  wording  in  such  cases. 

There  are  also  maps  and  charts  accompanying  certain  of  the  cases, 
namely:  Grisbadarna  Case,  North  Atlantic  Coast  Fisheries  Case,  Island 
of  Timor  Case,  and  Tavignano,  Camouna  and  Gaulois  Cases.  These 
maps  and  charts  are  reproductions  of  the  originals  accompanying  the 
official  reports  of  the  different  cases,  and  therefore  necessarily  have 


/! 


93770 


11 


PREFACE 


the  legend  and  the  names  of  the  countries,  places,  rivers,  etc.,  in 
the  language  used  on  the  original  maps  or  charts. 

In  view  of  the  fact  that  the  accuracy  of  the  translations  might  be 
questioned,  especially  with  respect  to  the  more  important  documents, 
an  Appendix  has  been  added  which  contains  the  original  official  texts 
of  the  translated  documents.  While  this  adds  very  materially  to  the 
size  of  the  volume,  yet  the  Director  felt  that  this  disadvantage  was 
more  than  counterbalanced  by  the  usefulness  of  such  a collection  of 
original  texts. 

The  original  texts  and  translations  of  the  Hague  Conventions  of 
1899  and  1907  for  the  pacific  settlement  of  international  disputes  have 
been  printed  as  an  annex  to  the  Introduction,  in  order  that  the  reader 
may  be  informed  of  the  method  of  procedure  under  which  the  various 
arbitral  tribunals  and  commissions  of  inquiry  were  instituted  and 
regulated. 

While  considerable  difficulty  has  been  met  with  in  securing  certain 
original  texts  and  authoritative  translations,  it  is  believed  that  the 
volume  as  now  issued  will  be  found  of  much  service,  not  only  to  the 
casual  reader,  but  to  any  one  desiring  to  study  the  various  cases  from 
documents  of  unquestioned  accuracy  and  authority,  and  that  nothing 
has  been  omitted  which  is  essential  to  that  purpose. 

James  Brown  Scott, 

Director  of  the  Division  of  International  Law. 

Washington,  D.  C.. 

February  28,  igi6. 


CONTENTS 

PAGE 

Preface  i 

Introduction  ix 

The  Hague  Conventions  of  1899  and  1907  for  the  pacific  settlement  of 

international  disputes  xxxii 

List  of  Authorities  cix 

Arbitrations  before  the  Hague  Tribunals 
The  Pious  Fund  Case  (Mexico  vs.  United  States) 

Syllabus  1 

Award  of  the  Tribunal,  October  14,  1902  3 

Agreement  for  Arbitration,  May  22,  1902  7 

Additional  Documents 

Claims  Convention  of  July  4,  1868 12 

Opinion  of  Mr.  Wadsworth,  in  the  original  Pious  Fund  Case  before 

the  United  States  and  Mexican  Claims  Commission  of  1868 17 

Opinion  of  Mr.  Zamacona,  in  the  original  Pious  Fund  Case  before 

the  United  States  and  Mexican  Claims  Commission  of  1868 22 

Award  of  Sir  Edward  Thornton,  umpire  in  the  original  Pious  Fund 
Case  before  the  United  States  and  Mexican  Claims  Commission 

of  1868,  November  11,  1875 48 

Decision  of  Sir  Edward  Thornton,  Amending  the  Award  in  the 
original  Pious  Fund  Case  before  the  United  States  and  Mexican 

Claims  Commission  of  1868 53 

The  Venezuelan  Preferential  Case  (Germany,  Great  Britain  and  Italy  vs. 
Venezuela  et  al.) 

Syllabus 55 

Award  of  the  Tribunal,  February  22,  1904  56 

Agreement  for  Arbitration,  May  7,  1903  62 

Additional  Documents 

Claims  Protocol  of  February  13,  1903,  between  Germany  and 

Venezuela 65 

Claims  Protocol  of  February  13,  1903,  between  Great  Britain  and 

Venezuela 67 

Claims  Protocol  of  February  13,  1903,  between  Italy  and  Venezuela  70 
Claims  Protocol  of  February  17,  1903,  between  the  United  States 

and  Venezuela 74 

The  Japanese  House  Tax  Case  (France,  Germany  and  Great  Britain  vs. 
Japan) 

Syllabus 77 

Award  of  the  Tribunal,  May  22,  1905 78 

Agreement  for  Arbitration,  August  28,  1902  85 

Additional  Documents 

Extract  from  Treaty  of  Commerce  and  Navigation  of  July  16,  1894, 

between  Great  Britain  and  Japan 89 

Extract  from  Treaty  of  Commerce  and  Navigation  of  April  4,  1896, 

between  Germany  and  Japan 91 

Extract  from  Treaty  of  Commerce  and  Navigation  of  August  4, 

1896,  between  France  and  Japan 92 

The  Muscat  Dhows  Case  (France  vs.  Great  Britain) 

Syllabus  93 

Award  of  the  Tribunal,  August  8,  1905  95 

Agreement  for  Arbitration,  October  13,  1904 101 


IV 


CONTENTS 


PAGE 

Additional  Documents 

Extract  from  Treaty  of  Friendship  and  Commerce  of  November  17, 

1844,  between  France  and  the  Iman  of  Muscat 103 

Declaration  of  March  10,  1862,  between  France  and  Great  Britain 
respecting  the  Independence  of  the  Sultans  of  Muscat  and  Zan- 
zibar   103 

Extract  from  the  General  Act  of  Brussels  of  July  2,  1890,  for  the 

Suppression  of  the  African  Slave  Trade 104 

Supplementary  Agreement  of  January  13,  1905,  to  the  Agreement 

for  Arbitration 108 

Supplementary  Agreement  of  May  19,  1905,  to  the  Agreement  for 

Arbitration 109 

The  Casablanca  Case  (France  vs.  Germany) 

Syllabus 110 

Award  of  the  Tribunal,  May  22,  1909 Ill 

Agreement  for  Arbitration,  November  24,  1908 117 

Additional  Documents 

Protocol  of  November  10,  1908,  containing  a Formula  of  Regrets..  119 
Procis-verbal  of  Regrets  of  May  29,  19()9 120 

The  Grisbadarna  Case  (Norway  vs.  Sweden) 

Syllabus 121 

Award  of  the  Tribunal,  October  23,  1909 122 

Agreement  for  Arbitration,  March  14,  1908 133 

Additional  Documents 

Resolution  of  His  Royal  Highness  the  Crown  Prince  Regent  of 
Sweden  and  Norway  of  March  26,  1904,  with  accompanying 
Protocol  of  March  15,  1904,  concerning  the  Maritime  Boundary  136 
Annex:  Charts  opposite  140 

The  North  Atlantic  Coast  Fisheries  Case  (Great  Britain  vs.  United 
States) 

Syllabus  141 

Award  of  the  Tribunal,  September  7,  1910 146 

Agreement  for  Arbitration,  January  27,  1909 147 

Maps  opposite  194 

Dissenting  Opinion  of  Luis  M.  Drago  on  Question  5 195 

Additional  Documents 

Modus  Vivendi  of  October  6/8,  1906  208 

Memorandum  of  the  American  Embassy  of  September  12,  1906....  209 

Memorandum  of  the  British  Foreign  Office  of  September  25,  1906..  210 

Modus  Vivendi  of  September  4/6,  1907  212 

Modus  Vivendi  of  July  15/23,  1908  214 

Correspondence  of  January  27-March  4,  1909,  supplementary  to  the 

Agreement  for  Arbitration 215 

Resolution  of  the  United  States  Senate  of  February  18,  1909  219 

Modus  Vivendi  of  July  22/September  8,  1909  220 

Agreement  of  July  20,  1912,  adopting  Recommendations  in  the 

Award 221 

The  Orinoco  Steamship  Company  Case  (United  States  vs.  Venezuela) 

Syllabus 226 

Award  of  the  Tribunal,  October  25,  1910 228 

Agreement  for  Arbitration,  February  13,  1909  235 

Additional  Documents 

Opinion  of  Mr.  Bainbridge,  in  the  original  Orinoco  Steamship  Com- 
pany Case  before  the  United  States  and  Venezuelan  Claims 

Commission  of  1903  240 

Opinion  of  Mr.  Grisanti,  in  the  original  Orinoco  Steamship  Company 
Case  before  the  United  States  and  Venezuelan  Claims  Commis- 
sion of  1903  243 


CONTENTS 


V 


PAGE 

Award  of  Charles  Augustinus  Henri  Barge,  umpire  in  the  original 
Orinoco  Steamship  Company  Case  before  the  United  States  and 
Venezuelan  Claims  Commission  of  1903,  February  22,  1904  255 

The  Savarkar  Case  (France  vs.  Great  Britain) 

Syllabus 275 

Award  of  the  Tribunal,  February  24,  1911 276 

Agreement  for  Arbitration,  October  25,  1910  280 

Additional  Document:  Notes  of  October  25,  1910,  supplementary  to 

the  Agreement  for  Arbitration 282 

The  Canevaro  Case  (Italy  vs.  Peru) 

Syllabus 284 

Award  of  the  Tribunal,  May  3,  1912 285 

Agreement  for  Arbitration,  April  25,  1910 294 

Additional  Documents:  Notes  of  April  27,  1910,  concerning  the  For- 
mation of  the  Tribunal 296 

The  Russian  Indemnity  Case  (Russia  vs.  Turkey) 

Syllabus 297 

Award  of  the  Tribunal,  November  11,  1912 298 

Agreement  for  Arbitration,  July  22/August  4,  1910 324 

The  Carthage  Case  (France  vs.  Italy) 

Syllabus 329 

Award  of  the  Tribunal,  May  6,  1913 330 

Agreement  for  Arbitration,  March  6,  1912 336 

Additional  Documents 

Joint  Note  of  January  26,  1912,  concerning  the  settlement  of  the 

Carthage  and  Manouba  Cases  339 

Supplementary  Agreement  of  April  4,  1912,  to  the  Agreements  for 

Arbitration  in  the  Carthage  and  Manouba  Cases 340 

The  Manouba  Case  (France  vs.  Italy) 

Syllabus 341 

Award  of  the  Tribunal,  May  6,  1913 342 

Agreement  for  Arbitration,  March  6,  1912 351 

The  Island  of  Timor  Case  (Netherlands  vs.  Portugal) 

Syllabus 354 

Award  of  the  Tribunal,  June  25,  1914 355 

Annex:  Maps  opposite  386 

Agreement  for  Arbitration,  April  3,  1913 387 

Additional  Documents 

Agreement  of  April  20,  1859,  relative  to  Boundary  Possessions 390 

Convention  of  Commerce,  Navigation,  Boundaries,  etc.,  of  June 

10,  1893 393 

Declaration  of  July  1,  1893,  regarding  Cession  of  Territory 395 

Convention  of  October  1,  1904,  settling  the  Boundary  of  the  Island 

of  Timor 396 

Reports  of  the  Hague  Commissions  of  Inquiry 

The  North  Sea  or  Dogger  Bank  Case  (Great  Britain  vs.  Russia) 

Syllabus 403 

Report  of  the  Commission,  February  26,  1905 404 

Agreement  for  Inquiry,  November  12/25,  1904  410 

Additional  Document:  Supplementary  Protocol  of  November  12/25, 

1904,  to  the  Agreement  for  Inquiry 412 

The  Tavignano,  Camouna  and  Gaulois  Cases  (France  vs.  Italy) 

Syllabus  413 

Report  of  the  Commission,  July  23,  1912 413 

Annex:  Maps  opposite  416 

Agreement  for  Inquiry,  May  20,  1912 417 


VI 


CONTENTS 


PAGE 

Additional  Documents 

, Agreement  of  April  15,  1912,  relative  to  the  Submission  of  the  Cases 

to  Inquiry  and  Arbitration 419 

Compromis  of  Arbitration,  November  8,  1912 419 

Agreement  of  May  2,  1913,  Settling  the  Controversy 421 

Tabular  Statement  of  Awards  and  Reports 423 

Appendix 

The  Pious  Fund  Case 

Award  of  the  Tribunal,  October  14,  1902  (French  text) 429 

Agreement  for  Arbitration,  May  22,  1902  ( Spanish  text) 432 

Convention  of  July  4,  1868,  between  the  United  States  of  America 
and  the  Republic  of  Mexico  for  the  Adjustment  of  Claims 
(Spanish  text)  437 

The  Venezuelan  Preferential  Case 

Award  of  the  Tribunal,  February  22,  1904  (French  text) 441 

Agreement  for  Arbitration,  May  7,  1903  (German  text) 445 

Protocol  of  February  13,  1903,  between  Germany  and  Venezuela  for 

the  Adjustment  of  Claims  (German  text) 447 

Protocol  of  February  17,  1903,  between  the  United  States  of  America 

and  Venezuela  for  the  Adjustment  of  Qaims  (Spanish  text) 449 

The  Japanese  House  Tax  Case 

Award  of  the  Tribunal,  May  22,  1905  (French  text) 452 

Agreement  for  Arbitration  between  Germany  and  Japan,  August  28, 

1902  (German  text)  457 

Agp-eement  for  Arbitration  between  France  and  Japan,  August  28, 

1902  (French  text)  461 

Extract  from  the  Treaty  of  Commerce  and  Navigation  of  April  4, 

1896,  between  Germany  and  Japan  (German  text) 464 

Extract  from  the  Treaty  of  Commerce  and  Navigation  of  August  4, 

1896,  between  France  and  Japan  (French  text) 465 

The  Muscat  Dhows  Case 

Award  of  the  Tribunal,  August  8,  1905  (French  text) 467 

Agreement  for  Arbitration,  October  13,  1904  (French  text) 471 

Extract  from  the  Treaty  of  Friendship  and  Commerce  of  November 

17,  1844,  between  France  and  the  Iman  of  Muscat  (French  text)  473 
Declaration  of  March  10,  1862,  between  France  and  Great  Britain  re- 
specting the  Independence  of  the  Sultans  of  Muscat  and  Zanzibar 

(French  text)  473 

Extract  from  the  General  Act  of  Brussels  of  July  2,  1890,  for  the 

Suppression  of  the  African  Slave  Trade  (French  text) 474 

Supplementary  Agreement  of  January  13,  1905,  to  the  Agreement  for 

Arbitration  (French  text)  477 

Supplementary  Agreement  of  May  19,  1905,  to  the  Agreement  for 

Arbitration  (French  text)  477 

Award  of  the  Tribunal,  May  22.  1909  (French  text) 479 

Agreement  for  Arbitration,  November  24,  1908  (French  text) 484 

Protocol  of  November  10,  1908,  containing  a Formula  of  Regrets 

(French  text)  485 

Procis-verbal  of  Regrets  of  May  29,  1909  (French  text) 485 

The  Grisbadarna  Case 

Award  of  the  Tribunal,  October  23,  1909  (French  text) 487 

Agreement  for  Arbitration,  March  14,  1908  (Swedish  and  Norwe- 
gian texts)  496 


CONTENTS  Vll 

PAGE 

Royal  Resolution  of  March  26,  1904,  with  accompan3Ting  Protocol 
of  March  IS,  1904,  concerning  the  Maritime  Boundary  between 
Norway  and  Sweden  (Swedish  text) 500 

The  Orinoco  Steamship  Company  Case 

Award  of  the  Tribunal,  October  25,  1910  (French  text) 504 

Agreement  for  Arbitration,  February  13,  1909  (Spanish  text) 508 

The  Savarkar  Case 

Award  of  the  Tribunal,  February  24,  1911  (French  text) 516 

Agreement  for  Arbitration,  October  25,  1910  (French  text) 519 

Supplementary  Note  of  October  25,  1910,  to  the  Agreement  for 

Arbitration  (French  text)  520 

The  Canevaro  Case 

Award  of  the  Tribunal,  May  3,  1912  (French  text) 522 

Agreement  for  Arbitration,  April  25,  1910  (Italian  and  Spanish  texts)  528 
Notes  of  April  27,  1910,  concerning  the  Formation  of  the  Tribunal 

(Spanish  text)  530 

The  Russian  Indemnity  Case 

Award  of  the  Tribunal,  November  11,  1912  (French  text) 532 

Agreement  for  Arbitration,  July  22/August  4,  1910  (French  text) 551 

The  Carthage  Case 

Award  of  the  Tribunal,  May  6,  1913  (French  text) 556 

Agreement  for  Arbitration,  March  6,  1912  (French  text) 561 

Joint  Note  of  January  26,  1912,  concerning  the  Settlement  of  the 

Carthage  and  Manouba  Cases  (French  text) 562 

Agreement  of  April  4,  1912,  supplementary  to  the  Agreements  for 

Arbitration  in  the  Carthage  and  Manouba  Cases  (French  text)..  563 

The  Manouba  Case 

Award  of  the  Tribunal,  May  6,  1913  (French  text) 565 

Agreement  for  Arbitration,  March  6,  1912  (French  text) 571 

The  Island  of  Timor  Case 

Award  of  the  Tribunal,  June  25,  1914  (French  text) 574 

Agreement  for  Arbitration,  April  3,  1913  (French  text) 596 

Agreement  of  April  20,  1859,  between  the  Netherlands  and  Portugal 

relative  to  Boundary  Possessions  (French  text) 599 

Convention  of  June  10,  1893,  between  the  Netherlands  and  Portugal 

relative  to  Commerce,  Navigation,  Boundaries,  etc.  (French  text)  601 
Declaration  of  July  1,  1893,  regarding  Cession  of  Territory  (French 

text)  603 

Convention  of  October  1,  1904,  settling  the  Boundary  of  the  Island 

of  Timor  (French  text) 604 

The  North  Sea  or  Dogger  Bank  Case 
Report  of  the  Commission  of  Inquiry,  February  26,  1905  (French 

text)  609 

Agreement  for  Inquiry,  November  12/25,  1904  (French  text) 614 

Supplementary  Protocol  of  November  12/25,  1904,  to  the  Agreement 

for  Inquiry  (French  text) 615 

The  Tavignano,  Camouna  and  Gaulois  Cases 
Report  of  the  Commission  of  Inquiry,  July  23,  1912  (French  text)..  616 

Agreement  for  Inquiry,  May  20,  1912  (French  and  Italian  texts) 617 

Agreement  of  April  15,  1912,  relative  to  the  Arbitration  of  the 

Tavignana,  Camouna  and  Gaulois  Cases  (French  text) 621 

Compromis  of  Arbitration,  November  8,  1912  (French  text) 621 

Agreement  of  May  2,  1913,  Settling  Definitively  the  Tavignana, 

Camouna  and  Gaulois  Controversy  (French  text) 623 


Index 


625 


INTRODUCTION 

Arbitration,  the  gift  of  the  Grecian  world,  was  frequently  resorted 
to  in  the  Middle  Ages,  but  was  passing  out  of  the  minds  of  men  and 
the  practice  of  nations  in  the  eighteenth  century,  when  it  was  brought 
again  to  honor  by  the  Republic  of  the  New  World.  The  statesman  to 
whom  the  renascence  of  arbitration  is  due  was  John  Jay,  who  was  Sec- 
retary of  State  for  Foreign  Affairs  during  the  Confederation  from  1784 
to  the  institution  of  the  Government  under  the  Constitution,  and  who 
continued  to  act  as  Secretary  of  State  in  Washington’s  administration 
until  Jefferson’s  assumption  of  the  office  on  March  22,  1790,  upon  his 
return  from  France,  in  which  country  he  had  represented  the  United 
States  as  its  Minister.  It  is  important  to  bear  this  in  mind,  because  it 
was  John  Jay  who,  as  Secretary  of  State  under  the  Confederation  pro- 
posed the  arbitration  of  the  outstanding  difficulties  with  Great  Britain 
and  sent  a report  to  Congress  advocating  this  form  of  settlement.  The 
report  was  sent  to  Congress  on  April  21,  1785,  recommending  that 
“effectual  measures  should  be  immediately  taken  to  settle  all  disputes 
with  the  Crown  of  Great  Britain”  with  respect  to  the  northeastern 
boundary  of  the  United  States,  and  Secretary  Jay  suggested  that  the 
papers  in  the  case  “should  be  transmitted  to  the  Minister  Plenipoten- 
tiary of  the  United  States  at  that  Court,  with  instructions  to  make  a 
proper  representation  of  the  case,  and  to  propose  that  commissioners 
be  appointed  to  hear  and  finally  decide  those  disputes.”^ 

It  was  likewise  John  Jay,  as  Acting  Secretary  of  State  in  Washing- 
ton’s Cabinet,  who  urged  President  Washington  to  secure  by  arbitra- 
tion the  settlement  of  the  outstanding  difficulties  which  unfortunately 
had  not  been  settled  as  Jay  had  proposed.  Washington,  acting  upon 
Jay’s  suggestion,  sent  a copy  of  Jay’s  original  report  to  the  first  Con- 
gress under  the  Constitution,  stating  in  his  letter  of  transmission,  dated 
February  9,  1790,  that  “it  is  desirable  that  all  questions  between  this 
and  other  nations  be  speedily  and  amicably  settled.”^ 

Congress  took  no  action,  and  the  disputes  between  Great  Britain 
and  the  United  States  remained  unsettled,  a constant  source  of  irrita- 
tion and  a pretext  for  war  if  either  country  should  be  disposed  to  re- 
sort to  force.  The  outbreak  of  the  French  Revolution  and  the  war 


^American  State  Papers,  vol.  i,  p.  94. 
mid.,  p.  90. 


X 


INTRODUCTION 


between  Great  Britain  and  France  in  1793  further  embittered  the 
relations  of  Great  Britain  and  the  United  States,  because  France 
claimed  and  exercised  the  right,  over  the  protest  alike  of  Great  Britain 
and  the  United  States,  to  fit  out  and  to  arm  privateers  within  the  juris- 
diction of  the  United  States;  to  cruise  upon  British  commerce,  taking 
the  prizes  when  captured  either  within  or  without  our  territorial  waters 
into  American  ports,  and  to  condemn  them  in  prize  courts  organized 
within  our  jurisdiction.  The  actions  of  Great  Britain  were  not  wholly 
beyond  criticism,  and  the  two  nations  found  themselves  slowly  drift- 
ing into  war,  when  Washington  proposed  to  Great  Britain  to  negotiate 
directly  in  order  to  settle  all  of  their  outstanding  difficulties,  and  se- 
lected John  Jay,  then  Chief  Justice  of  the  Supreme  Court  of  the 
United  States,  to  repair  to  England  as  the  representative  of  the  United 
States  in  such  negotiations. 

It  was  in  a way  poetic  justice  that  Jay,  who  had  originally  pro- 
posed, in  the  days  of  the  Confederation,  to  settle  the  outstanding  dis- 
putes with  Great  Britain  by  arbitration,  and  who  had  influenced  Wash- 
ington to  espouse  that  method  of  settling  controversies  with  the  mother 
countr}',  should  have  been  chosen  to  carry  into  effect  his  own  recom- 
mendations. Some  of  the  outstanding  difficulties  he  was  able  to  settle 
by  direct  negotiation ; others,  particularly  the  claims  which  he  had 
previously  proposed  to  arbitrate  and  the  difficulties  which  had  arisen 
since  the  outbreak  of  the  wars  of  the  French  Revolution,  he  was 
unable  to  settle  by  direct  negotiation,  but  he  succeeded  in  prevailing 
upon  Great  Britain  to  submit  these  disputes  to  arbitration.  He  pre- 
served the  peace  of  his  country,  and  by  the  treaty  which  bears  his 
name,  he  introduced  to  the  favorable  notice  of  the  modem  world 
arbitration  for  the  settlement  of  disputes  which  diplomacy  had  failed 
to  adjust.  But  in  so  doing,  he  sacrificed  every  hope  he  might  have 
cherished  for  political  preferment,  for  his  treaty,  which  was  very 
unpopular  with  the  partisans  of  a stiff  foreign  policy,  was  advised 
and  consented  to  by  a narrow  margin  in  the  Senate ; the  appropriations 
for  carrying  it  into  effect  were  passed  in  the  House  by  yeas  51,  nays  48,^ 
and  Jay  himself  shared  the  unpopularity  of  his  treaty.  He  had  had, 
however,  no  illusion  as  to  the  outcome  of  his  mission,  saying,  “If 
Washington  shall  think  fit  to  call  me  to  perform  this  service,  I will 
go  and  perform  it  to  the  best  of  my  abilities,  foreseeing  as  I do  the 
consequences  to  my  personal  popularity.  The  good  of  my  country 
I believe  demands  the  sacrifice,  and  I am  ready  to  make  it.  To 


^Annals  of  Congress,  vol.  5,  4th  ConR.,  1st  sess.,  p.  1291. 


INTRODUCTION 


XI 


Mrs.  Jay  he  confided  his  views  without  reserve.  “This  is  not  of  my 
seeking,”  he  said  in  a letter  to  her;  “on  the  contrary  I regard  it  as  a 
measure  not  to  be  desired,  but  to  be  submitted  to.”  And  in  another 
letter,  a little  later,  after  Jay  had  been  appointed  special  envoy  to 
Great  Britain  he  wrote:  “No  appointment  ever  operated  more  unpleas- 
antly upon  me;  but  the  public  considerations  which  were  urged,  and 
the  manner  in  which  it  was  pressed,  strongly  impressed  me  with  a con- 
viction that  to  refuse  it  would  be  to  desert  my  duty  for  the  sake  of 
my  ease  and  domestic  concerns  and  comforts.”^ 

Jay’s  treaty  provided  in  its  5th,  6th  and  7th  articles  for  the 
arbitration  of  the  boundary  disputes  between  the  two  countries;  the 
settlement  of  disputes  concerning  debts  claimed  by  British  merchants, 
to  be  due  and  unpaid,  but  which  could  not  be  collected  because  of  legal 
impediments  interposed  by  the  States  of  the  Union;  and,  finally,  the 
complaints  of  citizens  of  the  United  States,  on  the  one  hand,  and  of 
British  subjects,  on  the  other,  for  losses  since  the  outbreak  of  the  war 
between  Great  Britain  and  France,  due  to  the  alleged  illegal  conduct 
of  Great  Britain  and  the  United  States.  The  success  of  the  commis- 
sion organized  under  the  7th  article  to  settle  this  last  category  of 
claims,  and  the  admirable  opinions  of  the  commission  showing  that 
model  judgments  could  be  rendered  between  nations,  as  well  as  within 
nations,  convinced  the  world  that  arbitration  could  safely  be  resorted 
to.  The  result  was  that  during  the  nineteenth  century  arbitration  be- 
came the  favorite  method  of  settling  disputes  between  nations  after 
the  breakdown  of  diplomacy,  and  the  submission  by  Great  Britain  and 
the  United  States  of  the  so-called  Alabama  claims  to  the  arbitration  of 
the  Geneva  tribunal  in  1872,  showed  the  nations  that  arbitration  had 
no  limits  which  good-will  and  mutual  desire  might  not  overcome.  It 
thus  happened  that  in  the  course  of  the  nineteenth  century  the  nations 
generally  had  had  sufficient  experience  in  arbitration  to  suggest  that 
the  new  remedy  had  come  to  stay ; that  it  was  in  their  interest  to  devise 
machinery  in  order  to  facilitate  a recourse  to  arbitration  and  a method 
of  procedure  in  order  to  bring  the  issue  to  a decision. 

The  Institute  of  International  Law,  founded  in  1873,  upon  the 
initiative  of  the  American  publicist,  Francis  Lieber,  and  through  the 
efforts  of  the  Belgian  publicist,  Rolin-Jaequemyns,  foresaw  the  need 
and  the  advantages  of  a code  of  arbitral  procedure,  and  within  a year 
after  its  organization  drafted  a code  which  served  as  the  basis  of 
discussion  at  the  First  Hague  Conference,  and  which  with  sundry 


^Fellow’s  John  Jay,  pp.  267-8. 


Xll 


INTRODUCTION 


amendments,  not  always  for  the  better,  was  adopted  by  that  august 
assembly.  It  was  not  only  the  jurists  who  foresaw  the  necessity  of 
facilitating  a recourse  to  arbitration  and  provided  the  means  therefor; 
men  in  public  life  felt  the  need  and  took  appropriate  steps  to  meet  it. 
Thus  through  the  happy  cooperation  of  Mr.  William  Randel  Cremer, 
a labor  Member  of  Parliament,  and  Frederic  Passy,  then  a Member 
of  the  French  Chamber  of  Deputies,  the  Interparliamentary  Union 
was  formed  in  1888,  and  held  its  first  meeting  in  Paris  the  next  year, 
on  the  centenary  of  the  French  Revolution.  At  the  meeting  of  the 
Union  at  The  Hague  in  1894,  five  years  before  the  great  and  fertile 
idea  of  the  Czar  took  visible  form  and  shape  in  the  capital  of  the 
Netherlands,  the  following  resolution  was  voted: 

1.  National  sovereignty  remains  inalienable  and  inviolate; 

2.  Adherence  by  any  government  to  the  creation  of  a permanent 
international  court  must  be  entirely  voluntary; 

3.  All  adhering  States  must  be  on  a footing  of  perfect  equality 
before  the  permanent  international  court; 

4.  The  decision  of  the  permanent  court  must  have  the  force  of 
decisions,  subject  to  execution.^ 

These  enlightened  and  practical  men  of  affairs  foresaw  that  arbitra- 
tion should  have  its  machinery  just  as  the  jurists  of  the  Institute  of 
International  Law  foresaw  the  need  and  provided  a code  of  proce- 
dure for  international  tribunals.  A year  later,  that  is  to  say,  in  1895, 
at  the  Brussels  session,  a project  based  upon  these  resolutions  was 
adopted  by  the  Interparliamentary  Union,  and  this  draft  of  a Perma- 
nent Court  of  Arbitration,®  like  the  draft  of  arbitral  procedure  of  the 
Institute  of  International  Law,  served  as  the  basis  of  discussion  at 
the  Czar’s  Conference  held  at  The  Hague  in  1899,  where  it  was  ac- 
cepted in  principle,  adopted  with  many  modifications  and  put  into 
effect. 

On  the  twelfth  day  of  August,  1898,®  the  staid  and  sedate  diplomats 
accredited  to  the  Court  of  St.  Petersburg  were  astonished  to  receive 
from  the  hands  of  Count  Mourawieff,  Russian  Minister  for  Foreign 
Affairs,  a circular  note  proposing  a conference  to  consider  the  question 
of  the  limitation  of  armaments,  and  the  burdens  which  they  had  im- 
posed, which,  in  the  opinion  of  the  Czar,  were  unendurable  in  them- 
selves and  fatal  to  economic  and  social  progress.  On  December  30, 
1898,*  a second  circular  modifying  the  first  and  elaborating  it  in  certain 

iLange,  Union  Interparlementaire.  Risolutions  des  Conferences  et  Dicisions 
principales  du  Conseil,  2d  ed.,  1911,  p.  50. 

Ubid.,  p.  S3. 

•'’August  24.  1898.  new  style. 

♦January  11,  1899,  new  style. 


INTRODUCTION 


xin 


respects,  was  handed  to  the  same  staid  and  sedate  but  now  somewhat 
expectant  diplomats  accredited  to  The  Hague,  proposing  not  only 
definitely  the  Conference,  but  outlining  its  program,  of  which  the  fol- 
lowing article  alone  is  important  for  present  purposes : 

Acceptance,  in  principle,  of  the  use  of  good  offices,  mediation, 
and  voluntary  arbitration,  in  cases  where  they  are  available,  with 
the  purpose  of  preventing  armed  conflicts  between  nations ; under- 
standing in  relation  to  their  mode  of  application  and  establishment 
of  a uniform  practice  in  employing  them.^ 

This  assembly,  known  in  history  as  the  First  Hague  Peace  Con- 
ference, which  it  is  devoutly  to  be  hoped  will  be  only  the  first  of  an 
endless  series  of  conferences  meeting  at  The  Hag^e,  basing  its  action 
upon  the  proposal  of  the  Interparliamentary  Union,  created  the  so- 
called  Permanent  Court  of  Arbitration,  in  reality,  machinery  by  which 
a temporary  tribunal  can  be  created;  and,  basing  its  action  upon  the 
code  of  procedure  of  the  Institute  of  International  Law,  drafted  a 
code  of  arbitral  procedure  for  adoption  by  the  nations.  It  has  gen- 
erally been  supposed  that  the  proposal  to  establish  a Court  of  Arbitra- 
tion was  due  to  American  initiative,  and  it  appears  to  be  the  fact  that 
the  American  delegation  was  the  only  one  sent  to  The  Hague  with 
specific  instructions  on  this  point  and  a definite  plan  for  an  Interna- 
tional Court  of  Arbitration.  It  is,  of  course,  well  known  to  all  persons 
interested  in  the  subject  that  the  proposal  to  establish  a Court  of 
Arbitration  was  made  in  the  First  Conference^  by  the  first  British 
delegate,  Lord,  then  Sir  Julian  Pauncefote,  and  the  reason  for  such 
a proposal  and  the  agreement  to  make  it  were  stated  only  recently 
at  the  dinner  of  the  American  Society  for  the  Judicial  Settlement  of 
International  Disputes,  held  at  Washington  on  December  6,  1913,  by 
a person  who  was  in  a position  to  know  whereof  he  spoke.  The 
Honorable  David  Jayne  Hill,  at  that  time  Assistant  Secretary  of  State, 
later  our  distinguished  Ambassador  to  Berlin,  lifted  the  curtain  and 
showed  the  setting  of  the  stage.  Mr.  Hill  said: 

One  day  [in  the  month  of  November,  1898]  the  door  of  my 
office  opened,  and  the  genial  face  of  John  Hay  appeared.  He 
walked  into  my  room  saying,  “I  have  brought  you  a visitor’* ; 
and  Lord  Pauncefote,  following,  as  the  door  was  swung  open, 
entered  the  room.  Mr.  Hay  said,  “Lord  Pauncefote  has  brought 
to  the  department  a little  pamphlet  about  international  justice. 

^Scott,  The  Hague  Conventions  and  Declarations  of  i8gg  and  1907,  2d  ed., 
p.  xviii. 

^Proces-verbaux,  pt.  i,  p.  134;  pt.  iv,  p.  3. 


XIV 


INTRODUCTION 


He  has  come  to  talk  with  regard  to  the  answer  to  be  given  to  the 
Czar’s  rescript  calling  the  Conference  at  The  Hague.  I think 
you  have  thought  a little  about  that  subject,  and  I believe  you 
have  written  something  upon  it.  Won’t  you  sit  down  with  Lord 
Pauncefote  and  discuss  it  ?”  And  so  that  venerable  diplomat  and 
jurist  sat  down  with  me  and  for  half  an  hour  we  discussed  this 
subject.  “It  is  quite  impossible,”  he  said  very  calmly,  “that  any- 
thing should  be  done  at  that  Conference  in  the  direction  of  dis- 
armament or  of  arresting  armament;  but  isn’t  it  possible  that 
there  should  be  a movement  in  the  direction  of  a court  of 
arbitration  ?”^ 

After  relating  this  very  interesting  incident,  Mr.  Hill  proceeded: 

I will  not  detain  you  very  long  upon  that.  The  instructions  of 
our  department  to  our  delegation  sent  to  The  Hague  contained  a 
brief  history  of  the  peace  movement  in  America  and  a plan  for 
an  international  court.  The  British  Government  also  instructed 
Lord  Pauncefote  to  propose,  at  the  opportune  moment,  if  an 
opportune  moment  ever  came,  in  the  Hague  Conference,  a tribunal 
of  arbitration;  and  that  was  done  by  him.  Afterward,  a similar 
proposal  was  made  by  the  Russian  Government,  but  no  proposal 
of  that  kind  had  been  contained  in  the  original  rescript  of  the 
Czar. 

The  result  . . . was  that  the  First  Hague  Conference 

produced  important  conventions,  the  chief  of  which  was  the 
Convention  for  the  pacific  settlement  of  international  disputes ; 
but  almost  as  nugatory  as  the  idea  of  disarmament,  was  the  idea 
that  a merely  diplomatic  court,  such  as  this  arbitral  tribunal  was 
designed  to  be,  would  ever  settle  the  differences  between  nations 
in  any  judicial  way.* 

Mr.  Hill’s  modesty  did  not  permit  him  to  say  that  the  pamphlet 
which  Lord  Pauncefote  held  in  his  hand,  to  which  Mr.  Hay  so  gently 
and  smilingly  referred,  was  none  other  than  the  pamphlet  entitled 
“International  Justice,’’®  which  Mr.  Hill  had  written  upon  the  subject 
and  which  Mr.  Hay  had  himself  given  to  Sir  Julian.  Mr.  Hill’s 
modesty  likewise  prevented  him  from  saying  that  it  was  his  own  hand 
that  drafted  the  instructions  which  Mr.  Hay  approved  and  signed, 
containing  “a  brief  history  of  the  peace  movement  in  America,  and  a 
plan  for  an  international  court.”  The  pamphlet  on  international  jus- 
tice, which  figured  so  prominently  when  the  fate  of  the  Hague  Con- 
ference hung  in  the  balance,  thus  ends  in  language  which  is  as  timely 
to-day  as  when  it  was  written  in  1896: 

^Proceedings  of  Fourth  National  Conference  of  the  American  Society  for 
Judicial  Settlement  of  International  Disputes,  1913,  pp.  383-4. 

^Ibid.,  p.  384. 

®Printed  in  the  Yale  Law  Journal,  October,  1896,  p.  1. 


INTRODUCTION 


XV 


All  that  has  yet  been  said  or  written  upon  this  great  problem 
probably  constitutes  little  more  than  the  rude  scaffolding  of  that 
great  temple  of  international  justice  whose  dome  will  yet  shelter 
the  nations  of  the  earth  from  the  wrongs  of  oppression  and  the 
horrors  of  battle.  But  its  foundations  are  laid  in  the  moral  nature 
of  humanity ; and,  although — like  a vast  cathedral  grown  old  with 
passing  centuries — it  is  still  uncompleted,  we  may  bring  our  un- 
hewn stones  to  lay  upon  its  rising  walls,  in  the  faith  that  its 
invisible  Builder  and  Maker  will  shape  them  to  a place  in  the 
permanent  structure. 

Reserving  for  later  consideration  the  service  which  can  be  expected 
of  a diplomatic  court,  to  use  Mr.  Hill’s  language,  it  is  advisable  to 
consider  somewhat  in  detail  the  court  which  he  termed  diplomatic,  but 
which  the  Conference  preferred  to  call  the  “Permanent  Court  of 
Arbitration  of  The  Hague.” 

The  Conference  stated,  in  Article  15  of  the  Convention  for  the 
pacific  settlement  of  international  disputes,  the  object  of  interna- 
tional arbitration  to  be  “the  settlement  of  differences  between  States 
by  judges  of  their  own  choice,  and  on  the  basis  of  respect  for  law,” 
and  in  the  16th  article  it  recognizes  arbitration  as  the  most  ef- 
fective and  most  equitable  method  of  settling  disputes  of  a legal  nature 
which  diplomacy  has  failed  to  settle,  especially  in  the  interpretation 
and  application  of  international  conventions.  For  the  purpose  of 
facilitating  an  immediate  recourse  to  arbitration  in  such  cases  the 
signatory  Powers  agreed  in  Article  20  of  this  Convention  “to  organize 
a Permanent  Court  of  Arbitration,  accessible  at  all  times  and  operating, 
unless  otherwise  stipulated  by  the  parties,  in  accordance  with  the  rules 
of  procedure  inserted  in  the  present  Convention.”  That  is  to  say,  the 
Conference  declaring  arbitration  to  be  effective  and  equitable  especially 
in  questions  of  a legal  nature,  or,  as  we  would  say,  in  questions  of  a 
justiciable  nature,  proposed  to  facilitate  the  recourse  to  arbitration  by 
creating  the  necessary  machinery  to  carry  into  effect  the  recommenda- 
tion of  the  Interparliamentary  Union,  and  inserted  in  the  Convention 
rules  of  procedure  to  give  effect  to  the  recommendation  of  the  Insti- 
tute of  International  Law. 

Now  the  Permanent  Court  was,  according  to  Article  21,  to  receive 
and  to  decide  all  cases  of  arbitration,  unless  the  parties  agreed  to  insti- 
tute a special  tribunal  without  reference  to  the  pacific  settlement 
Convention.  The  Court  must  have  judges;  therefore  the  Conference 
provided  in  Article  23  that  within  three  months  after  the  ratifica- 
tion of  the  Convention  “each  signatory  Power  shall  select  four  per- 


XVI 


INTRODUCTION 


sons  at  the  most,  of  known  competency  in  questions  of  international 
law,  of  the  highest  moral  reputation,  and  disposed  to  accept  the 
duties  of  arbitrators.”  These  persons  were  to  be  appointed  for  a 
period  of  six  years;  they  were  to  be  eligible  for  reappointment,  and 
their  names  were  to  be  inscribed  in  a list  to  be  placed  in  the  Inter- 
national Bureau  created  by  Article  22  of  the  Convention,  to  serve  as  a 
clerk  to  the  Court. 

The  next  step  to  be  taken  was  the  creation  of  a temporary  tribunal 
from  the  list  of  the  judges  inscribed  in  the  Bureau,  and  notified  to  the 
signatory  Powers,  and  according  to  Article  24,  the  procedure  to  be 
observed  was  as  follows : 

When  the  signatory  Powers  desire  to  have  recourse  to  the 
Permanent  Court  for  the  settlement  of  a difference  that  has  arisen 
between  them,  the  arbitrators  called  upon  to  form  the  competent 
tribunal  to  decide  this  difference  must  be  chosen  from  the  general 
list  of  members  of  the  Court. 

Failing  the  direct  agreement  of  the  parties  on  the  composition 
of  the  arbitration  tribunal,  the  following  course  shall  be  pursued: 

Each  party  appoints  two  arbitrators,  and  these  together  choose 
an  umpire. 

The  seat  of  the  tribunal  was  to  be  at  The  Hague,  and  its  place  of 
session  was  only  to  be  altered  with  the  assent  of  the  parties  (Article 
25).  A body  called  the  “Permanent  Administrative  Council,”  com- 
posed of  the  diplomatic  representatives  of  the  signatory  Powers  ac- 
credited to  The  Hague,  was  to  organize  the  International  Bureau 
which  when  organized  was  to  be  placed  under  its  direction  and  control, 
to  notify  to  the  Powers  the  constitution  of  the  Court,  to  provide  for 
its  installation,  and  in  general  to  supervise  the  Court  and  the  Bureau, 
whose  expenses  were  to  be  borne  by  the  sig^natory  Powers  in  the  pro- 
portion fixed  for  the  International  Bureau  of  the  Universal  Postal 
Union. 

Such  were  the  provisions  concerning  the  Court  adopted  by  the  Con- 
ference, recommended  to  the  twenty-six  Powers  participating  therein, 
and  ratified  by  them  without  exception,  and  to  which  all  the  Powers 
invited  to  the  Second  Hague  Conference,  some  forty-four  in  number, 
have  since  adhered. 

The  provisions  of  the  Convention  of  1899  have  been  modified  in  only 
one  essential  point,  which  it  is  necessary  to  consider  in  this  place.  It 
will  be  observed  that  under  Article  24,  as  quoted,  each  of  the  Powers 
in  dispute  could  select  two  arbitrators  both  of  whom  could  be  its  sub- 


INTRODUCTION 


XVll 


jects  or  citizens.  This  meant  that  in  all  probability  four  of  the  five 
judges  would  be  interested  in  the  outcome  of  the  proceedings,  with 
the  result  that  the  dispute  either  would  or  could  be  decided  by  the  um- 
pire, who  was  likely  to  be  the  only  disinterested  and  therefore  impar- 
tial person.  The  second  Hague  Conference  of  1907  modified  this 
procedure  by  providing  in  Article  45  of  the  revised  Convention  that 
“Each  party  appoints  two  arbitrators,  of  whom  one  only  can  be  its 
national  or  chosen  from  among  the  persons  selected  by  it  as  members 
of  the  Permanent  Court.”  That  is  to  say,  three  persons  constituting 
a majority  of  the  Court  were  to  be  disinterested  parties,  so  that  the 
decision  of  the  case  would  rest  in  their  impartial  hands. 

Now  what  was  the  nature  of  the  institution  created  by  the  First 
Conference?  Its  framers  considered  that  they  had  established  not 
merely  a Court,  but  a Permanent  Court,  for  they  so  said.  But  it  is 
difficult  to  call  a Court  “Permanent,”  which  does  not  exist,  and  which 
only  comes  into  being  when  it  is  created  for  the  trial  of  a particular 
case,  and  goes  out  of  existence  as  soon  as  the  case  is  tried.  It  is 
difficult  to  consider  as  a court,  a temporary  tribunal,  which  is  not  com- 
posed of  judges,  because  by  Article  24  of  the  Convention  of  1899  the 
tribunal  does  not  exist,  but  is  to  be  created.  It  is  therefore  difficult 
to  see  how  the  Court  is  “accessible  at  all  times,”  when,  as  a matter  of 
fact,  it  does  not  exist,  and  only  becomes  accessible  when  it  has  been 
cieated  by  the  parties  in  litigation  and  is  then  only  accessible  to  them. 
The  Conference  did  not  call  the  creature  of  their  hands  a court  of 
justice.  It  was  to  be  one  of  arbitration,  and  in  Article  15  they  de- 
fined what  they  meant  by  arbitration,  stating  that  it  is  “the  settlement 
of  differences  between  States  by  judges  of  their  own  choice,  and  on 
the  basis  of  respect  for  law.”  That  is  to  say,  differing  from  courts  of 
justice,  the  judges  are  to  be  of  the  choice  of  the  parties  in  controversy; 
whereas  judges  of  the  parties  in  litigation  are  rigorously  excluded 
from  national  courts  of  justice.  Again,  the  decision  is  to  be  on  the  basis 
of  respect  for  law,  which  does  not  mean  necessarily  that  the  decision 
is  to  be  reached  by  the  impartial  and  passionless  application  of  prin- 
ciples of  law,  as  in  the  case  of  municipal  courts,  but  the  decision  is 
to  be  reached  “on  the  basis  of  respect  for  law,”  which  may  be  a very 
different  matter. 

Three  delegates  to  the  Second  Hague  Conference,  two  of  whom 
had  attended  the  First  Conference  and  had  taken  an  active  part  in  the 
creation  of  the  so-called  Permanent  Court,  spoke  their  minds  freely 
on  the  nature  of  the  Court.  The  late  Mr.  Asser  said : 


XVlll 


INTRODUCTION 


Instead  of  a Permanent  Court,  the  Convention  of  1899  only 
created  the  phantom  of  a court,  an  impalpable  ghost,  or,  to  speak 
more  plainly,  it  created  a clerk’s  office  with  a list.^ 

The  late  Mr.  de  Martens,  whose  interest  in  arbitration  has  been  so 
keen  and  his  success  as  an  arbitrator  so  marked  that  he  has  been 
called  the  Chief  Justice  of  Christendom,  said : 

What,  then,  is  this  court  whose  judges  do  not  even  know  each 
other?  The  Court  of  1899  is  only  an  idea  which  sometimes  takes 
the  form  of  body  and  soul  and  then  disappears  again.* 

Finally,  an  American  delegate  to  the  Second  Conference  stated: 

In  a word,  the  Permanent  Court  is  not  permanent,  because  it  is 
not  composed  of  permanent  judges ; it  is  not  accessible  because  it 
has  to  be  formed  for  each  individual  case;  finally,  it  is  not  a 
court,  because  it  is  not  composed  of  judges.® 

It  is  not  disrespectful  to  point  out  the  real  nature  of  an  institution, 
even  though  the  result  may  be  to  show  that  it  is  not  what  its  name 
would  seem  to  imply,  and  that  instead  of  being  a Permanent  Court,  it 
is  merely  a list  of  the  names  of  persons  kept  in  a Bureau  at  The 
Hague,  from  which  nations  in  controversy  can  select  five  persons  to 
form  a temporary  tribunal.  This  right  of  selection  of  arbitrators 
nations  have  always  possessed,  and  doubtless  in  many  cases  they  would 
have  chosen  the  very  persons  inscribed  in  the  list  at  The  Hague. 
But  it  is  only  fair  to  say  that  the  machinery,  however  imperfect,  de- 
vised by  the  First  Hague  Conference  has  nevertheless  rendered  in- 
estimable services  to  the  cause  of  arbitration  by  putting  the  stamp 
of  approval  of  an  international  conference  upon  arbitration  as  a means 
of  settling  difficulties,  and  by  turning  the  minds  and  the  thoughts  of 
nations  in  controversy  to  The  Hague,  where  this  temporary  tribunal 
of  a very  special  kind  can  be  called  into  being  for  the  settlement  of 
their  disputes  which  diplomacy  has  failed  to  adjust. 

A proposition  had  been  made  at  the  First  Conference  to  conclude  a 
treaty  of  arbitration,  pledging  the  Powers  to  submit  certain  categories 
of  disputes  to  arbitration  without  reservation  of  any  kind.  The  prop- 
osition was  rejected,  owing  to  the  unyielding  opposition  of  Germany 
and  Article  19,  the  material  portion  of  which  has  been  quoted,  seemed 
to  register  defeat  instead  of  a triumph.  And  yet  a triumph  it  was. 


^Actes  et  documents,  vol.  ii,  p.  315. 
mid.,  p.  322. 

^Ibid.,  p.  315. 


INTRODUCTION 


XIX 


because  the  great  series  of  treaties  beginning  with  the  Treaty  of  Octo- 
ber 14,  1903,  between  Great  Britain  and  France,  and  including  the 
twenty-six  treaties  which  Mr.  Root  negotiated  during  his  Secretaryship 
of  State,  are  based  upon  the  reserv'ed  right  contained  in  this  article. 
We  are,  therefore,  not  justified  in  belittling  the  Permanent  Court  of 
The  Hague,  which  is  in  reality  a permanent  list  of  judges,  although  it 
is  both  proper  and  necessary  that  the  exact  nature  of  this  institution  be 
pointed  out.  Faulty  as  it  is,  it  has  advanced  the  cause  of  arbitration 
more  perhaps  than  any  single  act  of  recent  times. 

But  it  is  not  enough  to  have  a court  or  machinery  by  which  a tem- 
porary tribunal  can  be  devised ; there  should,  in  the  interest  of  dis- 
putants, be  uniform  procedure  to  be  applied  in  the  conduct  of  a case. 
This  is  what  the  First  Conference  provided,  adopting  as  the  basis  of 
its  discussion  the  code  of  arbitral  procedure  drafted  by  the  Institute 
of  International  Law. 

Article  30  of  the  Convention  is  thus  worded : 

With  a view  to  encourage  the  development  of  arbitration,  the 
signatory  Powers  have  agreed  on  the  following  rules  which  shall 
be  applicable  to  arbitral  procedure,  unless  other  rules  have  been 
agreed  on  by  the  parties. 

It  will  be  observed,  however,  that  the  code  of  procedure  is  drafted 
to  encourage  the  development  of  arbitration,  and  that  the  Powers 
agree  upon  the  rules  laid  down  as  applicable  to  arbitral  procedure.  It 
is  also  to  be  noted  that  they  do  not  bind  themselves  to  accept  the  rules, 
reserving  to  themselves  the  right  to  agree  upon  other  rules  if  they  so 
desire.  This  is  a familiar  device  of  diplomacy  to  adopt  in  fact,  al- 
though leaving  the  parties  free  in  form  not  to  adopt  if  they  so  desire. 
If  the  parties  in  dispute  agree  to  submit  the  difference  to  arbitration, 
they  sign,  according  to  Article  31,  a “special  act  (compromis) , in  which 
the  subject  of  the  difference  is  clearly  defined,  as  well  as  the  extent 
of  the  arbitrators’  powers.”  In  the  revision  of  this  article  by  the 
Second  Conference  a number  of  important  changes  and  additions  are 
made.  Thus,  “the  compromis  likewise  defines,  if  there  is  occasion, 
the  manner  of  appointing  arbitrators,  any  special  powers  which  may 
eventually  belong  to  the  tribunal,  where  it  shall  meet,  the  language  it 
shall  use,  and  the  languages  the  employment  of  which  shall  be  author- 
ized before  it,  and,  generally  speaking,  all  the  conditions  on  which  the 
parties  are  agreed”  (Article  52). 

This  is  a very  necessary  proceeding  because  without  defining  the 
dispute  and  determining  the  extent  of  the  arbitrators’  powers,  there 


XX 


INTRODUCTION 


is  nothing  definite  for  submission  to  the  arbitrators,  and  the  duty  of 
the  arbitrators  in  the  premises  is  not  stated. 

“The  parties  have  the  right,”  according  to  Article  37,  “to  appoint 
delegates  or  special  agents  to  attend  the  tribunal,”  constituted  in  the 
manner  already  described,  to  serve  as  intermediaries  between  the 
Powers  and  the  tribunal,  and  the  parties  in  dispute  have  likewise  the 
right  to  appoint  counsel  or  advocates  to  appear  before  the  tribunal  and 
to  present  the  views  of  the  governments  in  conflict.  The  agent  here 
mentioned  is  appointed  by  the  government  in  controversy  to  prepare 
and  to  present  its  case  to  the  tribunal,  and  to  represent  the  government 
in  its  political  capacity  before  the  tribunal.  The  agent  may  or  may 
not  argue  the  case ; but  it  is  only  he,  not  the  counsel,  who  can  bind  the 
government,  as  the  counsel  is  merely  authorized  to  argue  the  case  as 
a lawyer  or  barrister  argues  the  case  of  his  client. 

The  question  arose  at  the  Second  Conference  whether  the  members 
of  the  Permanent  Court  might  act  as  agents  or  counsel,  and  although 
the  American  delegation  urged  that  the  members  of  the  Permanent 
Court  should  not  be  permitted  to  act  as  agents  or  counsel  as  it  was 
grossly  improper  for  members  of  a court  to  appear  before  it,  either  in 
a political  or  professional  capacity,  the  Conference  rejected  the  con- 
tention of  the  American  delegation  on  the  theory  that  the  members 
of  the  Court  were  not  really  judges ; but  acceded  to  it  in  part  by  pro- 
viding that  the  members  of  the  Permanent  Court  could  only  appear 
as  agent  or  counsel  on  behalf  of  the  Power  which  had  appointed  them 
members  of  the  Court  (Article  62). 

The  Conventions  divide  arbitral  procedure  into  two  distinct  phases 
called  “pleadings  and  oral  discussions”  (Article  39,  Convention  of  1899; 
Article  63,  Convention  of  1907).  The  pleadings  are  the  cases  made 
by  the  contending  governments,  delivered  to  each  other  and  laid 
before  the  Court  for  the  information  and  consideration  of  the  judges. 
In  other  words,  they  are  the  written  documents  which  the  nations  con- 
sider necessary  or  advisable  to  submit  to  the  tribunal.  The  oral  dis- 
cussions are  the  arguments  of  the  contending  nations  made  by  their 
agents,  counsel,  or  advocates,  and  the  agents  and  counsel  are  author- 
ized by  Article  45  to  “present  orally  to  the  tribunal  all  the  arguments 
they  may  think  expedient  in  defense  of  their  case,”  and  by  Article  46 
“they  have  the  right  to  raise  objections  and  points,”  upon  which,  how- 
ever, “the  decisions  of  the  tribunal”  are  “final,  and  can  not  form  the 
subject  of  any  subsequent  discussion.” 

The  discussions  or  oral  pleadings  are  under  the  direction  of  the 


INTRODUCTION 


XXI 


president  (Article  41).  The  tribunal  takes  into  consideration  the 
documents  presented  to  it;  by  Article  43  it  “is  free  to  take  into  con- 
sideration fresh  acts  or  documents  to  which  its  attention  may  be  drawn 
by  the  agents  or  counsel  of  the  parties by  Article  44  it  can,  in  addi- 
tion, “require  from  the  agents  of  the  parties  the  production  of  all  acts, 
and  can  demand  all  necessary  explanations;”  and,  “in  case  of  refusal, 
the  tribunal  takes  note  of  it.” 

The  discussions,  as  previously  stated,  are  under  the  direction  of  the 
President,  but  the  members  of  the  tribunal  have,  according  to  Article 
47,  “the  right  to  put  questions  to  the  agents  and  counsel  of  the  parties, 
and  to  demand  explanations  from  them  on  doubtful  points.”  But 
neither  the  questions  put  nor  remarks  made  by  the  members  are  to  be 
regarded  as  expressions  of  opinion.  The  tribunal  is  specifically 
authorized  by  Article  48  to  “declare  its  competence  in  interpreting  the 
compromis  as  well  as  the  other  treaties  which  may  be  invoked  in  the 
case,  and  in  applying  the  principles  of  international  law.”  A tribunal 
is  universally  regarded  as  competent  to  interpret  a compromis,  and  it 
was  therefore  not  necessary  to  state  it,  but  it  was  perhaps  well  to  do 
so  in  order  to  avoid  doubt  or  discussion. 

It  is  also  competent  to  interpret  the  other  treaties  invoked  in  the 
case,  or  as  the  revision  of  1907  says,  in  Article  73,  “the  other  papers 
and  documents.”  It  is  of  course  authorized  to  apply  the  principles  of 
international  law,  for  in  the  absence  of  an  agreement  of  the  contend- 
ing countries  excluding  the  law  of  nations  and  laying  down  specifically 
the  law  to  be  applied,  international  law  is  the  law  of  an  international 
tribunal. 

After  the  agents  and  counsel  have  submitted  the  case  or  cases,  the 
oral  proceedings  are  closed  and  the  judges  withdraw  to  consider  the 
case  and  to  reach  their  conclusion,  which  may  be  the  opinion  of  all  or 
of  a majority.  The  award  “given,”  as  Article  52  says,  “by  a majority 
of  votes,  is  accompanied  by  a statement  of  reasons.  It  is  drawn  up  in 
writing  and  signed  by  each  member  of  the  tribunal.”  The  revision 
of  this  article  prescribes  that  “the  award  must  give  the  reasons  on 
which  it  is  based.  It  contains  the  names  of  the  arbitrators ; it  is  signed 
by  the  president  and  registrar  or  by  the  secretary  acting  as  registrar” 
(Article  79  of  the  Convention  of  1907).  The  meaning  of  this  is  that 
the  opinions  of  the  judges  are  not  to  be  made  known,  for  Article  78 
of  the  revised  Convention  provides  that  “the  proceedings  remain  se- 
cret.” According  to  the  revision  it  is  signed  by  the  president  and  an 
officer  of  the  court,  not  as  indicating  the  opinion  of  the  president,  but 


XXll 


INTRODUCTION 


as  certifying  that  the  opinion  thus  signed  is  in  very  truth  the  opinion 
of  a majority  of  the  tribunal. 

The  award  when  drafted  is  read  at  a public  meeting  of  the  tribunal  in 
the  presence  of  the  agents  and  counsel,  or  in  their  absence  if  they  have 
been  duly  summoned  (Article  53).  The  award  according  to  Article  54 
puts  an  end  to  the  dispute  definitively  and  without  apj>eal,  and,  ac- 
cording to  expressed  provisions  of  the  Convention,  the  agreement  to 
arbitrate  implies  an  agreement  to  abide  by  and  to  execute  the  pro- 
visions of  the  award  (Article  18  of  1899;  Article  37  of  1907). 

The  question  as  to  whether  the  award  was  subject  to  revision  was 
much  debated  at  the  First  Conference,  and  it  was  sought  to  reopen  it  at 
the  Second.  It  was  strenuously  maintained  by  the  American  delegation 
to  the  First  Conference  that  the  award  was  subject  to  reconsideration, 
and  the  homely  statement  of  President  Lincoln  was  quoted,  “that 
nothing  is  settled  until  it  is  settled  right.”  On  the  other  hand,  it  was 
insisted  that  the  award  was  final,  that  it  could  not  be,  and,  even  if 
it  could,  that  it  should  not  be  reopened.  The  late  Mr.  de  Martens  was 
especially  insistent  that  the  purpose  of  the  award  was  really  to  settle 
the  dispute,  whereas  the  American  delegation  insisted,  and  with  better 
reason  it  would  seem,  that  the  purpose  was  not  merely  to  settle  the 
dispute,  but  to  settle  it  right.  The  result  was  the  following  com- 
promise, due  to  Mr.  Asser’s  deft  hand,  forming  Article  55  of  the 
Convention  of  1899  and  Article  83  of  the  revised  Convention: 

The  parties  can  reserve  in  the  compromis  the  right  to  demand 
the  revision  of  the  award. 

In  this  case  and  unless  there  be  a stipulation  to  the  contrary, 
the  demand  must  be  addressed  to  the  tribunal  which  pronounced 
the  award.  It  can  only  be  made  on  the  ground  of  the  discovery 
of  some  new  fact  calculated  to  exercise  a decisive  influence  upon 
the  award  and  which  was  unknown  to  the  tribunal  and  to  the 
party  which  demanded  the  revision  at  the  time  the  discussion  was 
closed. 

Proceedings  for  revision  can  only  be  instituted  by  a decision 
of  the  tribunal  expressly  recording  the  existence  of  the  new  fact, 
recognizing  in  it  the  character  described  in  the  preceding  para- 
graph, and  declaring  the  demand  admissible  on  this  ground. 

The  compromis  fixes  the  period  within  which  the  demand  for 
revision  must  be  made. 

It  does  not  seem  to  be  necessary  to  comment  upon  the  provisions  of 
this  article,  as  they  are  reasonably  clear  and  definite,  other  than  to  say 
that  it  is  the  undoubted  right  of  sovereign  nations  to  reserve  the  right 


INTRODUCTION 


xxiii 

to  demand  the  revision  of  an  award,  and  it  seems  strange  that  if  it  be 
the  right  of  sovereign  nations  to  agree  on  matters  of  the  most  vital 
importance,  it  should  be  necessary  to  reserve  the  right  to  revise  an 
award. 

What  is  the  effect  of  the  award?  As  between  the  parties  it  is 
final,  unless  the  right  to  revision  has  been  reserved.  It  affects  only 
the  parties  to  it.  This  is  familiar  doctrine,  and  is  to  be  found  in 
Article  56  of  the  original  Convention  and  Article  84  of  the  Second 
Convention.  The  article  in  question,  however,  allows  a third  party 
to  intervene  in  a case  affecting  it,  in  which  event  the  award  naturally 
binds  it,  otherwise  not.  It  may  be,  however,  that  a dispute  arises  as 
to  the  interpretation  and  execution  of  the  award,  admitting  that  it  is 
final.  The  Second  Conference  considered  this  question  and  provided 
the  following  means  of  settling  disputes  of  this  kind  in  Article  82 : 

Any  dispute  arising  between  the  parties  as  to  the  interpretation 
and  execution  of  the  award  shall,  in  the  absence  of  an  agreement 
to  the  contrary,  be  submitted  to  the  tribunal  which  pronounced  it. 

The  Second  Peace  Conference,  held  at  The  Hague  in  1907,  revised 
the  pacific  settlement  Convention  in  the  light  of  experience  but  did 
not  change  it  in  essentials.  It  may  be  considered,  as  it  doubtless 
is,  a better  document,  but  the  Permanent  Court  of  Arbitration  is  the 
Court  of  1899,  the  arbitral  procedure  is  the  procedure  slightly  modified 
of  1899,  although  it  must  be  admitted  that  the  temporary  tribunal 
composed  of  three  disinterested  arbitrators  makes  a nearer  approach 
to  a judicial  tribunal  than  its  prototype  of  1899.  The  one  important 
addition  of  the  Second  Conference,  distinguished  from  sundry 
amendments,  is  due  to  the  French  delegation.  It  is  the  creation  of  sum- 
mary procedure  (Articles  86-90)  by  means  of  a smaller  tribunal  com- 
posed of  three  judges,  one  appointed  by  each  of  the  two  litigating  par- 
ties with  a disinterested  umpire  chosen  by  the  arbitrators.  Each  party 
is  represented  by  an  agent  serving  as  an  intermediary  between  his 
government  and  the  tribunal,  not  by  counsel  or  advocates;  the  pro- 
ceedings are  in  writing,  with  the  right  reserved  to  each  party  to  ask 
that  witnesses  and  experts  be  called,  and  with  the  right  reserved  to 
the  tribunal  to  demand  oral  explanations  from  the  agents  as  well  as 
from  the  experts  and  witnesses.  It  is,  of  course,  within  the  province 
of  the  countries  to  modify  these  provisions  and  to  appoint  counsel 
for  them,  should  they  desire ; but  the  purpose  of  the  innovation  is  that 
the  delays  incident  to  arbitration  be  avoided  and  that  the  procedure  be 
summary  in  fact,  as  well  as  in  theory. 


XXIV 


INTRODUCTION 


The  First  Hague  Peace  Conference  has  another  institution  to  its 
credit:  the  so-called  international  commission  of  inquiry,  which  has 
already  justified  its  existence  and  shown  that  it  is  capable  of  rendering 
great  services  in  ascertaining  facts  in  dispute,  if  only  the  nations  are 
willing  to  pledge  themselves  to  resort  to  it  and  actually  do  so  resort 
to  it.  Article  9 of  the  Convention  creates  the  new  institution,  and 
for  this  reason  it  is  quoted : 

In  differences  of  an  international  nature  involving  neither  honor 
nor  vital  interests,  and  arising  from  a difference  of  opinion  on 
points  of  fact,  the  sig^iatory  Powers  recommend  that  the  parties, 
who  have  not  been  able  to  come  to  an  agreement  by  means  of 
diplomacy,  should,  as  far  as  circumstances  allow,  institute  an 
international  commission  of  inquiry,  to  facilitate  a solution  of 
these  differences  by  elucidating  the  facts  by  means  of  an  impar- 
tial and  conscientious  investigation. 

It  will  be  observed  that  the  purpose  of  the  commission  is  to  find 
the  facts  involved  in  the  dispute  “by  means  of  an  impartial  and  con- 
scientious investigation”  in  the  expectation  and,  indeed,  in  the  belief 
that,  the  facts  being  found,  the  dispute  will  either'  be  settled  by  their 
determination,  or  that  the  parties  themselves  will  apply  the  principles 
of  law  to  the  facts,  or  refer  the  legal  questions  to  a tribunal  of  arbitra- 
tion for  its  award.  It  is  also  to  be  noted  the  careful,  not  to  say  timid, 
way  in  which  the  nations  created  a moral  rather  than  a legal  obliga- 
tion. The  Powers  do  not  agree,  they  recommend  (in  the  revision  of 
1907  the  contracting  Powers  deem  it  expedient  and  desirable),  and 
the  recommendation  is  not  unqualified  for  it  is  “as  far  as  circumstances 
allow” ; and  finally,  lest  they  should,  through  inadvertence,  bind  them- 
selves upon  questions  involving  honor  or  vital  interests,  such  questions 
are  excluded  from  the  scope  of  the  recommendation.  However,  it  is 
better  to  grope  in  the  dark,  if  dark  it  be,  than  to  make  a leap  in  the 
dark,  and  it  is  just  by  such  uncertain  and  questioning  steps  that  per- 
manent progress  is  made  in  matters  international. 

Supposing  that  the  Powers  comply  with  the  recommendation,  con- 
stitute the  commission  and  submit  the  facts  in  dispute  to  its  determina- 
tion, the  result  is  a report  limited,  as  Article  14  says,  to  a “statement” 
which  has  not,  in  any  way,  the  character  of  an  arbitral  award.  “It 
leaves  the  conflicting  Powers  entire  freedom  as  to  the  effect  to  be  given 
to  this  statement.”  It  was  the  earnest  desire  of  the  Russian  delegation 
at  the  First  Conference  to  create  a legal  obligation  instead  of  a recom- 
mendation to  submit  disputed  facts  to  a commission  of  inquiry.  And 
it  was  also  the  hope  of  the  Russian  delegation  at  the  Second  Confer- 


INTRODUCTION 


XXV 


ence  to  add  a clause  to  the  14th  article,  by  which  the  parties  bind 
themselves  to  settle  the  dispute  on  the  facts  thus  found,  or  to  submit 
the  dispute  to  arbitration,  thus  removing  it  definitely  from  the  field  of 
controversy.^ 

It  was  thought  best,  however,  to  treat  the  commission  of  inquiry  as 
a jury  finding  facts  without  imposing  upon  it  the  functions  of  a court, 
or  without  binding  the  nations  to  take  further  and  definite  action. 
The  opposition  to  this  change  of  the  Russian  Government  was  very 
general,  although  in  the  Dogger  Bank  Case,^  the  very  first  case  sub- 
mitted to  a commission  of  inquiry,  the  parties  in  dispute,  namely.  Great 
Britain  and  Russia,  invested  the  commission,  not  merely  with  the  duty 
of  determining  the  facts  in  dispute,  but  of  finding  liability  as  well.  The 
opposition  to  the  original  proposition  of  an  agreement  to  submit  facts 
in  dispute  to  an  international  commission  instead  of  a recommendation 
to  find  the  facts  gave  rise  to  a protracted  and  heated  discussion,  due 
to  the  unwillingness  of  the  Balkan  States  to  accept  the  commission  on 
the  ground  that  its  creation  menaced  the  rights  of  small  Sates.® 

It  is  not  necessary  to  discuss  the  details  of  procedure  devised  by  the 
First  Conference  and  modified  by  the  Second  other  than  to  say  that 
the  original  Convention  was  to  be  constituted,  unless  the  Powers 
should  decide  otherwise,  in  the  same  manner  as  the  temporary  tribunal 
of  the  Permanent  Court,  and  that  the  Powers  in  dispute  agreed  to 
supply  the  commission  “as  fully  as  they  may  think  possible,  with  all 
means  and  facilities  necessary  to  enable  it  to  be  completely  acquainted 
with  and  to  accurately  understand  the  facts  in  question”  (Article  12). 
The  revised  Convention  of  1907  has  very  much  enlarged  the  provisions 
of  the  articles  relating  to  the  commission  of  inquiry  by  setting  out,  at 
length,  the  details  of  the  procedure  to  be  followed.  This  is,  no  doubt, 
both  helpful  and  wise,  as  parties  in  controversy  are  not  in  a frame  of 
mind  to  devise  a method  of  procedure,  but  for  present  purposes  it  is 
not  necessary  to  consider  those  details  as  they  are  to  be  found  in  the 
Conventions  annexed  to  this  introduction.* 

It  will  be  recalled,  that,  in  the  passage  quoted  from  Mr.  Hill,  he 
suggested  that  the  Permanent  Court  of  The  Hague  was  merely  diplo- 
matic and  that  it  was  almost  futile  to  believe  that  such  a diplomatic 
body  “would  ever  settle  the  differences  between  nations  in  any  judicial 
way.”  The  reasons  for  his  belief  he  stated  in  the  following  passage 

^Actes  et  documents,  vol  i,  p.  415. 

^For  the  North  Sea  or  Dogger  Bank  Case,  see  post,  p.  403. 

®Scott,  The  Hague  Peace  Conferences  of  i8gg  and  igo7,  vol.  i,  pp.  77,  78,  307. 

*Post,  p.  xxxiv. 


XXVI 


INTRODUCTION 


taken  from  his  address  before  the  meeting  of  the  Judicial  Settlement 
Society  held  in  1913: 

That  Conference  was  made  up  almost  entirely  of  diplomatists, 
was  conducted  almost  exclusively  in  the  diplomatic  spirit,  and  its 
results  were  of  a purely  diplomatic  nature.  There  was  nothing 
binding.  There  was  nothing  that  looked  strongly  in  the  direction 
of  judicial  decisions,  in  the  proper  sense.  The  idea  was  that 
judges  selected  by  the  different  Powers  were  to  be  convoked 
whenever  there  was  a case  to  be  tried,  and  they  would  try  to  com- 
pose the  difficulty;  and,  as  one  of  the  most  eminent  jurists  in  that 
Conference  said,  “The  object  is  not  to  render  justice,  but  to  settle 
and  to  end  the  dispute.”  That  is  to  say,  the  object  was  not  to  do 
what  was  intrinsically  right,  but  to  do  that  which  the  loser  would 
feel  obliged,  in  the  circumstances,  to  accept.^ 

The  purpose  of  the  present  introduction  is  not  to  be  unduly  critical, 
but  to  show  exactly  what  was  done  by  the  first  Conference  in  the 
matter  of  establishing  an  international  court  of  justice.  And  it  is 
abundantly  clear  by  the  analysis  of  the  provisions  of  the  Convention 
creating  the  court  and  from  the  statements  of  Messrs.  Asser,  de 
Martens  and  Hill  that  the  idea  of  a court  was  proposed  rather  than 
devised  at  the  Conference. 

At  the  Second  Hague  Conference,  held  in  1907,  the  American  dele- 
gation was  instructed  by  the  then  Secretary  of  State,  Mr.  Elihu  Root, 
to  advocate  a truly  permanent  international  court,  to  be  formed 
of  judges  acting  under  a sense  of  judicial  responsibility.  A joint 
project  of  Germany,  Great  Britain  and  the  United  States,  with  the 
warm-hearted  and  outspoken  support  of  France,  was  proposed,  and 
after  weeks  of  discussion  a draft  convention  of  thirty-five  articles, 
dealing  with  the  composition,  jurisdiction  and  procedure  of  a p>erma- 
nent  international  court,  composed  of  judges,  as  distinct  from  arbitra- 
tors, was  adopted.  Owing  to  the  inability  to  hit  upon  a method  of 
appointing  the  judges  acceptable  to  the  States  generally,  the  Confer- 
ence contented  itself  with  the  draft  convention  adopted  by  the  Confer- 
ence and  the  recommendation  that  it  should  be  put  into  effect  as  soon 
as  an  agreement  could  be  reached  through  diplomatic  channels  upon 
the  method  of  appointing  the  judges  and  the  constitution  of  the  court. 
The  Court  of  Arbitral  Justice,  for  this  was  the  name  of  the  new 
institution,  although  it  should  have  been  called  more  simply  and  accu- 
rately the  International  Court  of  Justice,  was  thus  agreed  to  in  prin- 

^Proceedings  of  Fourth  National  Conference  of  the  American  Society  for 
Judicial  Settlement  of  International  Disputes,  iQtJ,  P-  ^84. 


INTRODUCTION 


XXVll 


ciple  and  requires  only  the  cooperation  of  a limited  number  of  Powers, 
for  no  number  is  specified  in  the  recommendation,  to  establish  it  in 
fact.  When  this  is  done  there  will  be  in  existence  a permanent  inter- 
national court  of  justice,  composed  of  trained  judges,  permanently  in 
session  through  a committee  thereof  at  The  Hague,  ready  to  receive 
and  capable  of  deciding  all  justiciable  questions,  which  may  be  sub- 
mitted to  it  by  the  countries  composing  the  society  of  nations. 

There  will  always  be  a field  for  the  so-called  Permanent  Court  of 
Arbitration  and  a truly  permanent  Court  of  Justice  because  nations 
may  well  prefer,  in  acute  disputes  where  their  policy  is  involved, 
to  refer  the  controversy  to  arbitrators  of  their  own  choice  in  order  to 
adjust  conflicting  interests  rather  than  to  submit  differences  of  a 
political  nature  to  a court  of  justice  to  be  decided  according  to  prin- 
ciples of  law.  And,  on  the  other  hand,  there  are  nations  that,  no 
doubt,  would  prefer  to  submit  their  justiciable  disputes  when  and  as 
they  arise,  to  an  international  court  of  justice  to  be  decided  according 
to  principles  of  law,  so  that  those  disputes,  insignificant  in  their  begin- 
ning, may  not  assume  political  importance,  embitter  the  relations  of 
nations  and  render  it  easier  for  them  to  drift  unconsciously,  it  may  be, 
into  war.  That  wise  and  shrewd  man  of  affairs,  the  venerable  Dr. 
Franklin,  said:  “It  is  in  human  nature  that  injuries  as  well  as  benefits 
received  in  times  of  weakness  and  distress,  national  as  well  as  per- 
sonal, make  deep  and  lasting  impressions;  and  those  ministers  are 
wise  who  look  into  futurity  and  quench  the  first  sparks  of  misunder- 
standing between  two  nations  which,  neglected,  may  in  time  grow  into 
a flame,  all  the  consequences  whereof  no  human  prudence  can  fore- 
see, which  may  produce  much  mischief  to  both,  and  can  not  possibly 
produce  any  good  to  either.”^ 

The  service  which  the  Permanent  Court  of  Arbitration  and  which 
the  International  Court  of  Justice  would  render  and  the  reasons  which 
would  justify  the  retention  of  the  former  and  the  creation  of  the 
latter  were  thus  admirably  stated  by  Mr.  Leon  Bourgeois  at  the  Second 
Hague  Conference: 

As  Mr.  Asser  has  said:  “There  must  be  judges  at  The  Hague.” 
If  there  are  at  present  no  judges  at  The  Hague,  it  is  because 
the  Conference  of  1899,  taking  into  consideration  the  whole  field 
open  to  arbitration,  intended  to  leave  to  the  parties  the  duty  of 
choosing  their  judges,  which  choice  is  essential  in  all  cases  of 
peculiar  gravity.  We  should  not  like  to  see  the  court  created  in 

^Letter  of  Benjamin  Franklin,  dated  December  22,  1779,  to  R.  Bernstorf, 
Minister  of  Foreign  Affairs  in  Denmark.  Wharton,  Diplomatic  Correspondence 
of  the  American  Revolution,  vol.  iii,  p.  435. 


XXVIU 


INTRODUCTION 


1899  lose  its  essentially  arbitral  character,  and  we  intend  to  pre- 
serve this  freedom  in  the  choice  of  judges  in  all  cases  where  no 
other  rule  is  provided. 

In  controversies  of  a political  nature,  especially,  we  think  that 
this  will  always  be  the  real  rule  of  arbitration,  and  that  no  nation, 
large  or  small,  will  consent  to  go  before  a court  of  arbitration 
unless  it  takes  an  active  part  in  the  appointment  of  the  members 
composing  it. 

But  is  the  case  the  same  in  questions  of  a purely  legal  nature? 
Can  the  same  uneasiness  and  distrust  appear  here?  And  does  not 
every  one  realize  that  a real  court  composed  of  real  jurists  may 
be  considered  as  the  most  competent  organ  for  deciding  contro- 
versies of  this  character  and  for  rendering  decisions  on  pure  ques- 
tions of  law? 

In  our  opinion,  therefore,  either  the  old  system  of  1899  or  the 
new  system  of  a truly  permanent  court  may  be  preferred,  accord- 
ing to  the  nature  of  the  case.  At  all  events  there  is  no  intention 
whatever  of  making  the  new  system  compulsory.  The  choice 
between  the  tribunal  of  1899  and  the  court  of  1907  will  be  op- 
tional; and,  as  Sir  Edward  Fry  has  so  well  said,  experience  will 
show  the  advantages  or  disadvantages  of  the  two  systems.^ 

The  following  resolution  was  unanimously  adopted  by  the  Institute 
of  International  Law  at  its  session  in  Christiania  in  1913: 

While  recognizing  the  great  value  of  the  Court  of  Arbitration, 
instituted  by  the  Peace  Conference  of  1899,  to  international  jus- 
tice and  the  maintenance  of  peace; 

The  Institute  of  International  Law: 

In  order  to  facilitate  and  to  hasten  recourse  to  arbitration;  to 
assure  the  settlement  of  differences  of  a legal  nature  by  arbiters 
representing  the  different  systems  of  legislation  and  of  juris- 
prudence ; 

In  order  to  reinforce  the  authority  of  the  tribunals  in  the  eyes 
of  the  representatives  of  the  parties  in  controversy  by  having  the 
members  of  the  tribunal  known  to  them  in  advance,  and  likewise 
to  increase  the  moral  force  of  the  decision  by  having  it  rendered 
by  a larger  number  and  by  the  authority  of  arbiters  recognized 
by  the  totality  of  the  States ; 

In  order  to  resolve,  in  case  of  a treaty  of  compulsory  arbitra- 
tion containing  a clause  to  this  effect,  the  doubts  which  might 
arise  as  to  whether  or  not  a particular  controversy  belongs  to  the 
category  of  questions  subject  to  compulsory  arbitration  under  the 
treaty ; 

In  order  to  create  a court  of  appeals  for  decisions  rendered  by 
tribunals  constituted  otherwise  than  in  conformity  with  the  rules 
of  the  Hague  Convention,  in  case  the  special  compromis  should 
provide  for  the  possibility  of  such  a revision ; 


^Actes  et  documents,  vol  ii,  pp.  347-8. 


INTRODUCTION 


XXIX 


Considers  it  highly  desirable  that  satisfaction  be  given  to  the 
first  voeu  adopted  by  the  Second  Peace  Conference  in  favor  of  the 
establishment  of  a Court  of  Arbitral  Justice.^ 

It  will  be  observed  that  there  is  no  provision  in  the  original  or  re- 
vised Convention  for  the  pacific  settlement  of  international  dis- 
putes for  the  use  of  force  either  to  compel  nations  to  submit  their 
disputes  to  the  so-called  Permanent  Court  at  The  Hague  or  to  an  in- 
ternational commission  of  inquiry,  and  there  is  likewise  no  provision 
for  the  use  of  force  to  secure  compliance  with  the  decision  of  the 
temporary  tribunal  of  the  so-called  Permanent  Court  or  to  compel  the 
nations  to  take  further  action  upon  the  report  of  the  international 
commission.  The  Conventions  for  the  pacific  settlement  of  interna- 
tional disputes  state  simply  that  the  agreement  to  arbitrate  implies 
the  engagement  to  submit  loyally  to  the  award  (Article  18  of  the  Con- 
vention of  1899;  Article  37  of  the  revised  Convention  of  1907). 

Experience  had  with  arbitration  justifies  the  action  of  both  Confer- 
ences in  this  respect,  for  the  awards  of  arbitral  tribunals  have  in- 
variably been  complied  with,  although  there  may  have  been  grumbling 
and  delay  and,  in  some  cases,  a modification  of  the  award  itself.  If 
such  is  the  result  of  experience  it  would  seem  wise  to  allow  experience 
to  decide  whether,  in  the  future,  a sanction  be  necessary  in  the  mat- 
ter of  awards,  and  it  is  also  better  to  allow  experience  to  decide 
whether  some  form  of  sanction  be  necessary  in  order  to  compel  nations 
to  submit  their  disputes  to  the  so-called  Permanent  Court,  and  their 
justiciable  disputes  to  a permanent  international  court,  when  they  shall 
have  specifically  agreed  to  do  so.  The  American  delegation  to  the 
Second  Hague  Conference  drafted  several  articles  which  provided 
that  nations  might  resort  freely  to  the  permanent  court  to  be  created, 
and  that  the  defendant  nation  might,  upon  the  applicatio»i  of  the  plain- 
tiff nation,  be  invited  by  the  court  to  attend  and  to  litif?ate  the  ques- 
tion, not  summoned  or  hailed  before  the  court. 

The  Articles  referred  to,  which  have  had  the  good  fortune  to  meet 
with  the  approval  of  eminent  publicists,®  are : 

Article  12.  The  Permanent  Court  of  Arbitration  shall  not  be 
competent  to  receive  or  consider  any  petition,  application  or  com- 
munication whatever  from  any  person  natural  or  artificial  except 
a sovereign  State,  nor  shall  it  be  competent  to  receive  any  appli- 

'^Annuaire  de  I’Institut  de  droit  international,  1912,  pp.  603-4. 

^See  an  article  by  the  distinguished  Belgian  publicist,  Professor  Nys,  entitled 
“The  Development  and  Formation  of  International  Law,”  in  the  American  Jour- 
nal of  International  Law,  vol.  6,  pp.  308-10. 


XXX 


INTRODUCTION 


cation  or  petition  from  any  sovereign  State  unless  it  relates  ex- 
clusively to  a difference  of  an  international  character  with  another 
State  which  diplomacy  has  failed  to  settle  and  which  is  not  political 
in  character  and  does  not  affect  the  honor,  independence  or  vital 
interests  of  any  State. 

Article  13.  The  Permanent  Court  of  Arbitration  shall  not 
take  any  action  on  any  petition  or  application  which  it  is  compe- 
tent to  receive  unless  it  shall  be  of  the  opinion  that  a justiciable 
case,  and  one  which  it  is  competent  to  entertain  and  decide  and 
worthy  of  its  consideration,  has  been  brought  before  it,  in  which 
case  it  may  in  not  less  than  thirty  or  more  than  ninety  days  after 
presentation  of  the  petition  invite  the  other  sovereign  State  to 
appear  and  submit  the  matter  to  judicial  determination  by  the 
Court. 

In  the  latter  event  the  State  so  invited  may  (a)  refuse  to  submit 
the  matter;  (b)  refrain  from  submitting  the  matter  by  failing  for 

days  to  make  any  response  to  the  invitation,  in  which 

event  it  shall  be  deemed  to  have  refused  to  submit  the  matter; 
(c)  submit  the  matter  in  whole,  or  (d)  offer  to  submit  the  matter 
in  part  or  in  different  form  from  that  stated  in  the  petition,  in 
which  event  the  p>etitioning  State  shall  be  free  either  to  accept  the 
qualified  submission  or  to  withdraw  its  petition  or  application, 
and  shall  signify  its  election  within  a time  to  be  determined  by 
the  Court;  (e)  appear  for  the  sole  purpose  of  denying  the  right 
of  the  petitioning  State  to  any  redress  or  relief  on  the  petition  or 
application  presented — that  is  to  say,  it  may  except  for  demur; 
in  case  the  court  does  not  sustain  this,  it  shall  renew  the  invitation 
to  appear  and  submit  the  matter. 

Article  14.  In  case,  however,  the  States  in  controversy  can  not 
agree  upon  the  form  and  scope  of  the  submission  of  the  difference 
referred  to  in  the  petition,  the  Court  of  Arbitration  may  appoint, 
upon  the  request  by  either  party,  a committee  of  three  from  the 
members  of  the  Administrative  Council,  none  of  whom  shall  rep- 
resent the  States  involved,  without  suggestion  from  either  party, 
and  the  committee  thus  constituted  shall  frame  the  questions  to  be 
submitted  and  the  scope  of  the  inquiry,  and  thereafter  if  either 
party  shall  withdraw  it  shall  be  deemed  to  have  refused  to  submit 
the  matter  involved  to  judicial  or  arbitral  determination. 

Article  15.  The  Administrative  Council  shall  transmit  to  every 
signatory  power  a copy  of  every  petition  which  may  be  submitted 
to  the  Permanent  Court  of  Arbitration,  and  any  power  affected 
thereby  shall  have  the  right  to  present  through  the  Administrative 
Council  any  matter  bearing  on  the  question  involved  which  it  sees 
fit  to  do,  and  any  matter  so  presented  shall  be  transmitted  by  the 
Administrative  Council  to  every  signatory  Power. 

The  Permanent  Court  of  Arbitration  was  installed  in  1902,  ready 
for  cases  that  might  be  submitted  to  the  temporary  tribunal,  formed 
from  the  list  of  judges  inscribed  in  the  International  Bureau  at  The 


INTRODUCTION 


XXXI 


Hague.  Two  republics  of  the  Western  Hemisphere  were  the  first  to 
avail  themselves  of  the  institution  and  to  confess  their  faith  in  this 
method  of  settling  their  disputes.  Porfirio  Diaz,  President  of  Mexico, 
and  Theodore  Roosevelt,  President  of  the  United  States  of  America, 
submitted  the  so-called  Pious  Fund  Case^  in  1902  to  the  first  temporary 
tribunal,  formed  from  the  list  of  judges  composing  the  Permanent 
Court  of  Arbitration,  thus  starting  this  institution  upon  what  is  hoped 
will  be  a great  and  a beneficent  career. 

Whether  the  awards  of  the  various  temporary  tribunals  which  have 
since  been  formed  justify  the  expectations  of  the  diplomats  and 
jurists  who  founded  it  at  the  First  Conference  and  confessed  their 
faith  anew  in  its  efficacy  at  the  Second  Conference  at  The  Hague, 
is  left  to  the  judgment  of  the  intelligent  reader.  But  the  undersigned 
is  unwilling  to  close  this  introduction  without  stating  his  opinion  that 
the  institution  has  unquestionably  succeeded,  although  he  is  of  the 
equally  firm  opinion  that  it  can  only  be  regarded  as  a first  step,  albeit 
a very  long  one,  toward  the  creation  of  a truly  permanent  international 
court  of  justice,  which,  to  use  the  happy  phrase  of  Elihu  Root,  will 
be  compHDsed  of  judges  acting  under  a sense  of  judicial  responsibility. 
That  the  day  may  not  be  far  distant  when  this  consummation  shall 
take  place  should  be  the  hope  and  prayer  of  every  partisan  of  justice 
and  of  every  lover  of  his  kind.  We  must  have  agencies  which  will 
settle  the  disputes  between  nations  without  jeopardizing  civilization, 
for  we  dare  not  forget  that  although  “there  are  many  nations  there  is 
only  one  civilization.” 

James  Brown  Scott, 

Director  of  the  Division  of  International  Law. 

Washington,  D.  C., 

February  28,  1916. 


^Post,  p.  1. 


THE  HAGUE  CONVENTIONS  OF  1899  AND  1907  FOR  THE 

[Original  Texts^] 


1899 

Convention  pour  le  R^glement 

Pacifique  des  Condits  Interna- 

tionaux. 

Sa  Majeste  I’Empereur  d’Alle- 
magne,  Roi  de  Prusse;  [etc.:] 

Animes  de  la  ferme  volonte  de 
concourir  au  maintien  de  la  paix 
generale ; 

Resolus  a favoriser  de  tons 
leurs  efforts  le  reglement  amiable 
des  conflits  internationaux ; 

Reconnaissant  la  solidarite  qui 
unit  les  membres  de  la  societe  des 
nations  civilisees ; 

Voulant  etendre  I’empire  du 
droit  et  fortifier  le  sentiment  de  la 
justice  internationale ; 

Convaincus  que  I’institution 
permanente  d’une  juridiction  ar- 
bitrale,  accessible  a tous,  au  sein 
des  Puissances  independantes, 
peut  contribuer  efficacement  a ce 
resultat ; 

Considerant  les  avantages  d’une 
organisation  generale  et  reguliere 
de  la  procedure  arbitrale ; 

Estimant,  avec  I’Auguste  Initia- 
teur  de  la  Conference  Internatio- 
nale de  la  Paix,  qu’il  importe  de 
consacrer  dans  un  accord  inter- 
national les  principes  d’equite 
et  de  droit  sur  lesquels  reposent 
la  securite  des  Etats  et  le  bien- 
etre  des  peuples; 


1907 

Convention  pour  le  Rkglement 

Pacifique  des  Conflits  Interna- 
tionaux. 

Sa  Majeste  I’Empereur  d’Alle- 
magne,  Roi  de  Prusse;  [etc.:] 

Animes  de  la  ferme  volonte  de 
concourir  au  maintien  de  la  paix 
generale ; 

Resolus  a favoriser  de  tous 
leurs  efforts  le  reglement  amiable 
des  conflits  internationaux; 

Reconnaissant  la  solidarite  qui 
unit  les  membres  de  la  societe  des 
nations  civilisees ; 

Voulant  etendre  I’empire  du 
droit  et  fortifier  le  sentiment  de  la 
justice  internationale; 

Convaincus  que  I’institution 
permanente  d’une  juridiction  ar- 
bitrale, accessible  a tous,  au  sein 
des  Puissances  independantes, 
peut  contribuer  efficacement  a ce 
resultat ; 

Considerant  les  avantages  d’une 
organisation  generale  et  reguliere 
de  la  procedure  arbitrale ; 

Estimant  avec  I’Auguste  Initia- 
teur  de  la  Conference  Internatio- 
nale de  la  Paix  qu’il  importe  de 
consacrer  dans  un  accord  inter- 
national les  principes  d’equite 
et  de  droit  sur  lesquels  reposent 
la  securite  des  fitats  et  le  bien- 
etre  des  peuples; 


^U.  S.  Statutes  at  Large,  vol.  32,  p.  1779;  vol.  36.  p.  2199.  Italics  indicate  differ- 
ences between  the  Conventions  of  1899  and  1907. 


PACIFIC  SETTLEMENT  OF  INTERNATIONAL  DISPUTES 
[Official  Translations^] 


1899 

Convention  for  the  pacihc  settle- 
ment of  international  disputes. 

His  Majesty  the  German  Em- 
peror, King  of  Prussia;  [etc.]  : 

Animated  by  a strong  desire  to 
concert  for  the  maintenance  of 
the  general  peace; 

Resolved  to  second  by  their 
best  efforts  the  friendly  settle- 
ment of  international  disputes ; 

Recognizing  the  solidarity 
which  unites  the  members  of  the 
society  of  civilized  nations ; 

Desirous  of  extending  the  em- 
pire of  law  and  of  strengthening 
the  appreciation  of  international 
justice ; 

Convinced  that  the  permanent 
institution  of  a Court  of  Arbi- 
tration, accessible  to  all,  in  the 
midst  of  the  independent  Powers, 
will  contribute  effectively  to  this 
result ; 

Having  regard  to  the  advan- 
tages attending  the  general  and 
regular  organization  of  arbitral 
procedure ; 

Sharing  the  opinion  of  the  au- 
gust initiator  of  the  International 
Peace  Conference  that  it  is  expe- 
dient to  record  in  an  international 
agreement  the  principles  of 
equity  and  right  on  which  are 
based  the  security  of  States  and 
the  welfare  of  peoples ; 


1907 

Convention  for  the  pacihc  settle- 
ment of  international  disputes. 

His  Majesty  the  German  Em- 
peror, King  of  Prussia;  [etc.]  : 

Animated  by  the  sincere  desire 
to  work  for  the  maintenance  of 
general  peace; 

Resolved  to  promote  by  all  the 
efforts  in  their  power  the  friendly 
settlement  of  international  dis- 
putes ; 

Recognizing  the  solidarity  unit- 
ing the  members  of  the  society  of 
civilized  nations ; 

Desirous  of  extending  the  em- 
pire of  law  and  of  strengthening 
the  appreciation  of  international 
justice ; 

Convinced  that  the  permanent 
institution  of  a tribunal  of  arbi- 
tration, accessible  to  all,  in  the 
midst  of  independent  Powers,  will 
contribute  effectively  to  this  re- 
sult ; 

Having  regard  to  the  advan- 
tages attending  the  general  and 
regular  organization  of  the  pro- 
cedure of  arbitration ; 

Sharing  the  opinion  of  the  au- 
gust initiator  of  the  International 
Peace  Conference  that  it  is  expe- 
dient to  record  in  an  interna- 
tional agreement  the  principles  of 
equity  and  right  on  which  are 
based  the  security  of  States  and 
the  welfare  of  peoples ; 


^These  translations  are  the  official  translations  of  the  Department  of  State  of 
the  United  States  (Ibid.),  slightly  revised  in  order  to  indicate  by  italics  in  the 
English  texts  also  the  differences  between  the  two  Conventions  so  indicated  in 
the  French  texts. 


XXXIV 


THE  HAGUE  CONVENTIONS  OF  1899  AND  1907  FOR  THE 


1899 


Desirant  conclure  une  Conven- 
tion a cet  effet,  ont  nomme  pour 
Leurs  Plenipotentiaires,  savoir: 

[Denomination  des  Plenipoten- 
tiaires.] 

Lesquels,  apres  s’etre  com- 
munique leurs  pleins  pouvoirs, 
trouves  en  bonne  et  due  forme, 
sont  convenus  des  dispositions 
suivantes : 

Titre  I. — Du  Maintien  de  la 
Paix  Generale 

Article  1 

En  vue  de  prevenir  autant  que 
possible  le  recours  a la  force  dans 
les  rapports  entre  les  fitats,  les 
Puissances  signataires  convien- 
nent  d’employer  tons  leurs  efforts 
pour  assurer  le  reglement  paci- 
fique  des  differends  intematio- 
naux. 

Titre  II. — Des  Bons  Offices  et 
DE  LA  Mediation 

Article  2 

En  cas  de  dissentiment  grave 
ou  de  conflit,  avant  d’en  appeler 
aux  armes,  les  Puissances  signa- 


1907 

Desireux,  dans  ce  but,  de 
niieux  assurer  le  fonctionnement 
pratique  des  Commissions  d’en- 
quete  et  des  tribunaux  d’arbi- 
trage  et  de  faciliter  le  recours  a 
la  justice  arbitrate  lorsqu'il  s’agit 
de  litiges  de  nature  a comporter 
une  procedure  sommaire; 

Ont  juge  necessaire  de  reviser 
sur  certains  points  et  de  com- 
pleter I’oeuvre  de  la  Premiere 
Conference  de  la  Paix  pour  le 
rdglement  pacifique  des  conflits 
internationaux; 

Les  H antes  Parties  contractan- 
tes  ont  resolu  de  conclure  une 
nouvelle  Convention  a cet  effet  et 
ont  nomme  f>our  Leurs  Pleni- 
potentiaires, savoir: 

[Denomination  des  Plenipoten- 
tiaires.] 

Lesquels,  apres  avoir  depose 
leurs  pleins  pouvoirs,  trouves  en 
bonne  et  due  forme,  sont  con- 
venus de  ce  qui  suit: 


Titre  I. — Du  Maintien  de  la 
Paix  Generale 

Article  1 

En  vue  de  prevenir  autant  que 
possible  le  recours  a la  force  dans 
les  rapports  entre  les  £tats,  les 
Puissances  contractantes  con- 
viennent  d’employer  tous  leurs 
efforts  pour  assurer  le  reglement 
pacifique  des  differends  interna- 
tionaux. 

Titre  II. — Des  Bons  Offices  et 
de  la  Mediation 

Article  2 

En  cas  de  dissentiment  grave 
ou  de  conflit,  avant  d’en  appeler 
aux  armes,  les  Puissances  con- 


PACIFIC  SETTLEMENT  OF  INTERNATIONAL  DISPUTES 


XXXV 


1899 


Being  desirous  of  concluding  a 
Convention  to  this  effect,  have  ap- 
pointed as  their  plenipotentiaries, 
to  wit: 

[Here  follow  the  names  of 
plenipotentiaries.  ] 

Who,  after  communication  of 
their  full  powers,  found  in  good 
and  due  form,  have  agreed  on  the 
following  provisions : 


Title  I. — On  the  Maintenance 
OF  THE  General  Peace 

Article  1 

With  a view  to  obviating,  as  far 
as  possible,  recourse  to  force  in 
the  relations  between  States,  the 
signatory  Powers  agree  to  use 
their  best  efforts  to  insure  the 
pacific  settlement  of  international 
differences. 


Title  II. — On  Good  Offices 
and  Mediation 

Article  2 

In  case  of  serious  disagreement 
or  conflict,  before  an  appeal  to 
arms,  the  signatory  Powers  agree 


1907 

Being  desirous,  with  this  object, 
of  insuring  the  better  working  in 
practice  of  commissions  of  in- 
quiry and  tribunals  of  arbitration, 
and  of  facilitating  recourse  to  ar- 
bitration in  cases  which  allow  of 
a summary  procedure; 

Have  deemed  it  necessary  to 
revise  in  certain  particulars  and 
to  complete  the  work  of  the  First 
Peace  Conference  for  the  pacific 
settlement  of  international  dis- 
putes; 

The  high  contracting  Parties 
have  resolved  to  conclude  a new 
Convention  for  this  purpose,  and 
have  appointed  the  following  as 
their  plenipotentiaries : 

[Here  follow  the  names  of 
plenipotentiaries.] 

Who,  after  having  deposited 
their  full  powers,  found  in  good 
and  due  form,  have  agreed  upon 
the  following: 


Part  I. — The  Maintenance  of 
General  Peace 

Article  1 

With  a view  to  obviating  as  far 
as  possible  recourse  to  force  in  the 
relations  between  States,  the  con- 
tracting Powers  agree  to  use  their 
best  efforts  to  insure  the  pacific 
settlement  of  international  differ- 
ences. 


Part  II. — Good  Offices  and 
Mediation 

Article  2 

In  case  of  serious  disagreement 
or  dispute,  before  an  appeal  to 
arms,  the  contracting  Powers 


XXXVl 


THE  HAGUE  CONVENTIONS  OF  1899  AND  1907  FOR  THE 


1899 

Article  3 

taires  conviennent  d’avoir  re- 
cours,  en  tant  que  les  circon- 
stances  le  permettront,  aux  bons 
offices  ou  a la  mediation  d’une 
ou  de  plusieurs  Puissances  amies. 

Independamment  de  ce  re- 
cours,  les  Puissances  signataires 
jugent  utile  qu’une  ou  plusieurs 
Puissances  etrangeres  au  conflit, 
offrent  de  leur  propre  initiative, 
en  tant  que  les  circonstances  s’y 
pretent,  leurs  bons  offices  ou 
leur  mediation  aux  fitats  en 
conflit. 

Le  droit  d’offrir  les  bons  offices 
ou  la  mediation  appartient  aux 
Puissances  etrangeres  au  conflit, 
meme  pendant  le  cours  des  hos- 
tilites. 

L’exercice  de  ce  droit  ne  peut 
jamais  etre  considere  par  Tune 
ou  I’autre  des  Parties  en  litige 
comme  un  acte  peu  amical. 

Article  4 

Le  role  de  mediateur  consiste 
a concilier  les  pretentions  op- 
posees  et  a apaiser  les  ressenti- 
ments  qui  peuvent  s’etre  pro- 
duits  entre  les  fitats  en  conflit. 

Article  5 

Les  fonctions  de  mediateur 
cessent  du  moment  ou  il  est 
constate,  soit  par  I’une  des  Parties 
en  litige,  soit  par  le  mediateur 
lui-meme,  que  les  moyens  de 
conciliation  proposes  par  lui  ne 
sont  pas  acceptes. 

Article  6 

Les  bons  offices  et  la  mediation, 
soit  sur  le  recours  des  Parties  en 
conflit,  soit  sur  I’initiative  des 
Puissances  etrangeres  au  con- 


1907 

Article  3 

tractantes  conviennent  d’avoir  re- 
cours, en  tant  que  les  circon- 
stances le  permettront,  aux  bons 
offices  ou  a la  mediation  d’une 
ou  de  plusieurs  Puissances  amies. 

Independamment  de  ce  re- 
cours, les  Puissances  contrac- 
tantes  jugent  utile  et  desirable 
qu’une  ou  plusieurs  Puissances 
etrangeres  au  conflit  offrent  de 
leur  propre  initiative,  en  tant 
que  les  circonstances  s’y  pretent, 
leurs  bons  offices  ou  leur  media- 
tion aux  fitats  en  conflit. 

Le  droit  d’offrir  les  bons  offices 
ou  la  mediation  appartient  aux 
Puissances  etrangeres  au  conflit 
meme  pendant  le  cours  des  hos- 
tilites. 

L’exercice  de  ce  droit  ne  peut 
jamais  etre  considere  par  I’une 
ou  I’autre  des  Parties  en  litige 
comme  un  acte  peu  amical. 

Article  4 

Le  role  du  mediateur  consiste 
a concilier  les  pretentions  op- 
posees  et  a apaiser  les  ressenti- 
ments  qui  peuvent  s’etre  pro- 
duits  entre  les  fitats  en  conflit. 

Article  5 

Les  fonctions  du  mediateur 
cessent  du  moment  ou  il  est 
constate,  soit  par  I’une  des  Parties 
en  litige,  soit  par  le  mediateur 
lui-meme,  que  les  moyens  de 
conciliation  proposes  par  lui  ne 
sont  pas  acceptes. 

Article  6 

Les  bons  offices  et  la  mediation, 
soit  sur  le  recours  des  Parties  en 
conflit,  soit  sur  I’initiative  des 
Puissances  etrangeres  au  con- 


PACIFIC  SETTLEMENT  OF  INTERNATIONAL  DISPUTES 


xxxvn 


1899 

Article  3 

to  have  recourse,  as  far  as  cir- 
cumstances allow,  to  the  good 
offices  or  mediation  of  one  or 
more  friendly  Powers. 

Independently  of  this  recourse, 
the  signatory  Powers  recommend 
that  one  or  more  Powers,  stran- 
gers to  the  dispute,  should,  on 
their  own  initiative,  and  as  far  as 
circumstances  may  allow,  offer 
their  good  offices  or  mediation  to 
the  States  at  variance. 

Powers,  strangers  to  the  dis- 
pute, have  the  right  to  offer  good 
offices  or  mediation,  even  during 
the  course  of  hostilities. 

The  exercise  of  this  right  can 
never  be  regarded  by  one  or  the 
other  of  the  parties  in  conflict  as 
an  unfriendly  act. 

Article  4 

The  part  of  the  mediator  con- 
sists in  reconciling  the  opposing 
claims  and  appeasing  the  feelings 
of  resentment  which  may  have 
arisen  between  the  States  at  vari- 
ance. 

Article  5 

The  functions  of  the  mediator 
are  at  an  end  when  once  it  is  de- 
clared, either  by  one  of  the  parties 
to  the  dispute,  or  by  the  mediator 
himself,  that  the  means  of  recon- 
ciliation proposed  by  him  are  not 
accepted. 

Article  6 

Good  offices  and  mediation, 
either  at  the  request  of  the  par- 
ties at  variance,  or  on  the  initia- 
tive of  Powers  strangers  to  the 


1907 

Article  3 

agree  to  have  recourse,  as  far  as 
circumstances  allow,  to  the  good 
offices  or  mediation  of  one  or 
more  friendly  Powers. 

Independently  of  this  recourse, 
the  contracting  Powers  deem  it 
expedient  and  desirable  that  one 
or  more  Powers,  strangers  to  the 
dispute,  should,  on  their  ov/n  in- 
itiative and  as  far  as  circum- 
stances may  allow,  offer  their 
good  offices  or  mediation  to  the 
States  at  variance. 

Powers  strangers  to  the  dispute 
have  the  right  to  offer  good  offices 
or  mediation  even  during  the 
course  of  hostilities. 

The  exercise  of  this  right  can 
never  be  regarded  by  either  of  the 
parties  in  dispute  as  an  unfriendly 
act. 

Article  4 

The  part  of  the  mediator  con- 
sists in  reconciling  the  opposing 
claims  and  appeasing  the  feelings 
of  resentment  which  may  have 
arisen  between  the  States  at  vari- 
ance. 

Article  5 

The  functions  of  the  mediator 
are  at  an  end  when  once  it  is  de- 
clared, either  by  one  of  the  parties 
to  the  dispute  or  by  the  mediator 
himself,  that  the  means  of  recon- 
ciliation proposed  by  him  are  not 
accepted. 

Article  6 

Good  offices  and  mediation  un- 
dertaken either  at  the  request  of 
the  parties  in  dispute  or  on  the  in- 
itiative of  Powers  strangers  to  the 


xxxviii  THE  HAGUE  CONVENTIONS  OF  X899  AND  1907  FOR  THE 


1899 

flit,  ont  exclusivement  le  carac- 
tere  de  conseil  et  n’ont  jamais 
force  obligatoire. 

Article  7 

L’acceptation  de  la  mediation 
ne  pent  avoir  pour  effet,  sauf  con- 
vention contraire,  d’interrompre, 
de  retarder  ou  d’entraver  la 
mobilisation  et  autres  mesures 
preparatoires  a la  guerre. 

Si  elle  intervient  apres  I’ouver- 
ture  des  hostilites,  elle  n’inter- 
rompt  pas,  sauf  convention  con- 
traire, les  operations  militaires 
en  cours. 

Article  8 

Les  Puissances  signataires  sont 
d’accord  pour  recommander  I’ap- 
plication,  dans  les  circonstances 
qui  le  permettent,  d’une  media- 
tion speciale  sous  la  forme  sui- 
vante : 

En  cas  de  differend  grave  com- 
promettant  la  paix,  les  fitats  en 
conflit  choisissent  respectivement 
une  Puissance  a laquelle  ils  con- 
fient  la  mission  d’entrer  en  rap- 
port direct  avec  la  Puissance 
choisie  d’autre  part,  a I’effet  de 
prevenir  la  rupture  des  relations 
pacifiques. 

Pendant  la  duree  de  ce  mandat 
dont  le  terme,  sauf  stipulation 
contraire,  ne  pent  exceder  trente 
jours,  les  £tats  en  Htige  cessent 
tout  rapport  direct  au  sujet  du 
conflit,  lequel  est  considere 
comme  defere  exclusivement  aux 
Puissances  mediatrices.  Celles-ci 
doivent  appliquer  tons  leurs 
efforts  a r%ler  le  diflferend. 

En  cas  de  rupture  effective  des 
relations  pacifiques,  ces  Puis- 
sances demeurent  chargees  de  la 


1907 

flit,  ont  exclusivement  le  carac- 
tere  de  conseil  et  n’ont  jamais 
force  obligatoire. 

Article  7 

L’acceptation  de  la  mediation 
ne  pent  avoir  pou’*  effet,  sauf  con- 
vention contraire,  d’interrompre, 
de  retarder  ou  d’entraver  la 
mobilisation  et  autres  mesures 
preparatoires  a la  guerre. 

Si  elle  intervient  apres  I’ouver- 
ture  des  hostilites,  elle  n’inter- 
rompt  pas,  sauf  convention  con- 
traire, les  operations  militaires 
en  cours. 

Article  8 

Les  Puissances  contractantes 
sont  d’accord  pour  recommander 
I’application,  dans  les  circon- 
stances qui  le  permettent,  d’une 
mediation  speciale  sous  la  forme 
suivante : 

En  cas  de  differend  grave  com- 
promettant  la  paix,  les  fitats  en 
conflit  choisissent  respectivement 
une  Puissance  a laquelle  ils  con- 
fient  la  mission  d’entrer  en  rap- 
port direct  avec  la  Puissance 
choisie  d’autre  part,  a I’effet  de 
prevenir  la  rupture  des  relations 
pacifiques. 

Pendant  la  duree  de  ce  mandat 
dont  le  terme,  sauf  stipulation 
contraire,  ne  pent  exceder  trente 
jours,  les  fitats  en  litige  cessent 
tout  rapport  direct  au  sujet  du 
conflit,  lequel  est  considere 
comme  defere  exclusivement  aux 
Puissances  mediatrices.  Celles-ci 
doivent  appliquer  tous  leurs 
efforts  a regler  le  differend. 

En  cas  de  rupture  effective  des 
relations  pacifiques,  ces  Puis- 
sances demeurent  chargees  de  la 


PACIFIC  SETTLEMENT  OF  INTERNATIONAL  DISPUTES 


XXX IX 


1899 

dispute,  have  exclusively  the 
character  of  advice  and  never 
have  binding  force. 

Article  7 

The  acceptance  of  mediation 
can  not,  unless  there  be  an  agree- 
ment to  the  contrary,  have  the 
effect  of  interrupting,  delaying, 
or  hindering  mobilization  or  other 
measures  of  preparation  for  war. 

If  mediation  occurs  after  the 
commencement  of  hostilities  it 
causes  no  interruption  to  the  mil- 
itary operations  in  progress,  im- 
less  there  be  an  agreement  to  the 
contrary. 

Article  8 

The  signatory  Powers  are 
agreed  in  recommending  the  ap- 
plication, when  circumstances 
allow,  of  special  mediation  in  the 
following  form: 

In  case  of  a serious  difference 
endangering  the  peace,  the  States 
at  variance  choose  resj>ectively  a 
Power,  to  whom  they  intrust  the 
mission  of  entering  into  direct 
communication  with  the  Power 
chosen  on  the  other  side,  with  the 
object  of  preventing  the  rupture 
of  pacific  relations. 

For  the  period  of  this  mandate, 
the  term  of  which,  unless  other- 
wise stipulated,  can  not  exceed 
thirty  days,  the  States  in  conflict 
cease  from  all  direct  communica- 
tion on  the  subject  of  the  dispute, 
which  is  regarded  as  referred 
exclusively  to  the  mediating 
Powers,  who  must  use  their  best 
efforts  to  settle  it. 

In  case  of  a definite  rupture  of 
pacific  relations,  these  Powers  are 
charged  with  the  joint  task  of 


1907 

dispute  have  exclusively  the  char- 
acter of  advice,  and  never  have 
binding  force. 

Article  7 

The  acceptance  of  mediation 
can  not,  unless  there  be  an  agree- 
ment to  the  contrary,  have  the 
effect  of  interrupting,  delaying,  or 
hindering  mobilization  or  other 
measures  of  preparation  for  war. 

If  it  takes  place  after  the  com- 
mencement of  hostilities,  the  mili- 
tary operations  in  progress  are 
not  interrupted  in  the  absence  of 
an  agreement  to  the  contrary. 

Article  8 

The  contracting  Powers  are 
agreed  in  recommending  the  ap- 
plication, when  circumstances 
low,  of  special  mediation  in  the 
following  form: 

In  case  of  a serious  difference 
endangering  peace,  the  States  at 
variance  choose  respectively  a 
Power,  to  which  they  intrust  the 
mission  of  entering  into  direct 
communication  with  the  Power 
chosen  on  the  other  side,  with  the 
object  of  preventing  the  rupture 
of  pacific  relations. 

For  the  period  of  this  mandate, 
the  term  of  which,  unless  other- 
wise stipulated,  can  not  exceed 
thirty  days,  the  States  in  dispute 
cease  from  all  direct  communica- 
tion on  the  subject  of  the  dispute, 
which  is  regarded  as  referred  ex- 
clusively to  the  mediating  Powers, 
which  must  use  their  best  efforts 
to  settle  it. 

In  case  of  a definite  rupture  of 
pacific  relations,  these  Powers  are 
charged  with  the  joint  task  of  tak- 


xl 


THE  HAGUE  CONVENTIONS  OF  1899  AND  1907  FOR  THE 


1899 

mission  commune  de  profiler  de 
toute  occasion  pour  retablir  la 
paix. 

Titre  III. — Des  Commissions 

Internationales  d^Enquete 

Article  9 

Dans  les  litiges  d’ordre  inter- 
national n’engageant  ni  I’hon- 
neur  ni  des  interets  essentiels 
et  provenant  d’une  divergence 
d’appreciation  sur  des  points  de 
fait,  les  Puissances  sig^ataires 
jugent  utile  que  les  Parties  qui 
n’auraient  pu  se  mettre  d’accord 
par  les  voies  diplomatiques  in- 
stituent,  en  tant  que  les  cir- 
constances  le  permettront,  une 
Commission  internationale  d’en- 
quete  chargee  de  faciliter  la  solu- 
tion de  ces  litiges  en  eclaircis- 
sant,  par  un  examen  impartial 
et  consciencieux,  les  questions 
de  fait. 

Article  10 

Les  Commissions  intematio- 
nales  d’enquete  sont  constituees 
par  convention  speciale  entre  les 
Parties  en  litige. 

La  convention  d’enquete  pre- 
cise les  fails  a examiner  et  I’eten- 
due  des  pouvoirs  des  Commis- 
saires. 

Elle  regie  la  procedure. 

L’enquete  a lieu  contradictoire- 
ment.^ 

La  forme  et  les  ddais  a ob- 
server, en  tant  qu’ils  ne  sont  pas 
fixes  par  la  Convention  d’en- 
quete, sont  determines  par  la 
Commission  elle-meme. 


1907 

mission  commune  de  profiler  de 
toute  occasion  pour  retablir  la 
paix. 

Titre  III. — Des  Commissions 

Internationales  d’Enquete 

Article  9 

Dans  les  litiges  d’ordre  inter- 
national n’engageant  ni  I’hon- 
neur  ni  des  interets  essentiels 
et  provenant  d’une  divergence 
d’appreciation  sur  des  points  de 
fait,  les  Puissances  contractantes 
jugent  utile  et  desirable  que  les 
Parties  qui  n’auraient  pu  se 
mettre  d’accord  par  les  voies  di- 
plomatiques instituent,  en  tant 
que  les  circonstances  le  permet- 
tront, une  Commission  interna- 
tionale d’enquete  chargee  de 
faciliter  la  solution  de  ces  litiges 
en  eclaircissant,  par  un  examen 
impartial  et  consciencieux,  les 
questions  de  fait. 

Article  10 

Les  Commissions  intematio- 
nales  d’enquete  sont  constituees 
par  convention  speciale  entre  les 
Parties  en  litige. 

La  convention  d’enquete  pre- 
cise les  fails  a examiner;  elle 
determine  le  mode  et  le  delai  de 
formation  de  la  Commission  et 
I’etendue  des  pouvoirs  des  com- 
missaires. 

Elle  determine  egalement,  s^il 
y a lieu,  le  sibge  de  la  Commis- 
sion et  la  faculte  de  se  deplacer, 
la  langtie  dont  la  Commission 
fera  usage  et  celles  dont  I’emploi 
sera  autorise  devan  t elle,  ainsi 
que  la  date  d laquelle  chaque 


^See  footnote  on  opposite  page. 


PACIFIC  SETTLEMENT  OF  INTERNATIONAL  DISPUTES 


xU 


1899 

taking  advantage  of  any  oppor- 
tunity to  restore  peace. 


Title  III. — On  International 
Commissions  of  Inquiry 

Article  9 

In  differences  of  an  inter- 
tional  nature  involving  neither 
honor  nor  vital  interests,  and 
arising  from  a difference  of  opin- 
ion on  points  of  fact,  the  signatory 
Powers  recommend  that  the  par- 
ties, who  have  not  been  able  to 
come  to  an  agreement  by  means 
of  diplomacy,  should  as  far  as 
circumstances  allow,  institute  an 
international  commission  of  in- 
quiry, to  facilitate  a solution  of 
these  differences  by  elucidating 
the  facts  by  means  of  an  impartial 
and  conscientious  investigation. 


Article  10 

The  international  commissions 
of  inquiry  are  constituted  by 
special  agreement  between  the 
parties  in  conflict. 

The  convention  for  an  inquiry 
defines  the  facts  to  be  examined 
and  the  extent  of  the  commis- 
sioners’ powers. 

It  settles  the  procedure. 

On  the  inquiry  both  sides  must 
be  heard.’^ 

The  form  and  the  periods  to  be 
observed,  if  not  stated  in  the 
inquiry  convention,  are  decided 
by  the  commission  itself. 


1907 

ing  advantage  of  any  opportunity 
to  restore  peace. 


Part  III. — International  Com- 
missions OF  Inquiry 

Article  9 

In  disputes  of  an  international 
nature  involving  neither  honor 
nor  vital  interests,  and  arising 
from  a difference  of  opinion  on 
points  of  fact,  the  contracting 
Powers  deem  it  expedient  and  de- 
sirable that  the  parties  who  have 
not  been  able  to  come  to  an  agree- 
ment by  means  of  diplomacy, 
should,  as  far  as  circumstances 
allow,  institute  an  international 
commission  of  inquiry,  to  facili- 
tate a solution  of  these  disputes 
by  elucidating  the  facts  by  means 
of  an  impartial  and  conscientious 
investigation. 


Article  10 

International  commissions  of 
inquiry  are  constituted  by  special 
agreement  between  the  parties  in 
dispute. 

The  inquiry  convention  defines 
the  facts  to  be  examined ; it  deter- 
mines the  mode  and  time  in  which 
the  commission  is  to  be  formed 
and  the  extent  of  the  powers  of 
the  commissioners. 

It  also  determines,  if  there  is 
need,  where  the  commission  is  to 
sit,  and  whether  it  may  remove  to 
another  place,  the  language  the 
commission  shall  use  and  the  lan- 
guages the  use  of  which  shall  be 
authorized  before  it,  as  well  as  the 


^This  provision  appears  in  Article  19  of  the  1907  Convention. 


xlii 


THE  HAGUE  COm^NTIONS  OF  1899  AND  1907  FOR  THE 


1899 


Article  11 

Les  Commissions  internatio- 
nales  d’enquete  sont  formees,  sauf 
stipulation  contraire,  de  la  ma- 
niere  determinee  par  I’article  32 
de  la  presente  Convention. 


1907 

Partie  devra  deposer  son  expose 
des  fails,  el  generalement  toutes 
les  conditions  dont  les  Parties 
sont  convenues. 

Si  les  Parties  jugent  necessaire 
de  nommer  des  assesseurs,  la 
convention  d’enquete  determine 
le  mode  de  leur  designation  et 
I’etendue  de  leurs  pouvoirs. 

Article  11 

Si  la  convention  d’enquete  n’a 
pas  designe  le  siege  de  la  Com- 
mission, celle-ci  siegera  a La 
Haye. 

Le  siege  une  fois  fixe  ne  peut 
etre  change  par  la  Commission 
qu’avec  I’ assentiment  des  Parties. 

Si  la  convention  d’enquete  n’a 
pas  determine  les  langues  d em- 
ployer, il  en  est  decide  par  la 
Commission. 

Article  12 

Sauf  stipulation  contraire,  les 
Commissions  d’enquete  sont 
formees  de  la  maniere  deter- 
minee par  les  Articles  45  et  57 
de  la  presente  Convention. 

Article  13 

En  cos  de  deeds,  de  demission 
ou  d’empechement,  pour  quelque 
cause  que  ce  soil,  de  I’un  des  com- 
missaires,  ou  eventuellement  de 
I’un  des  assesseurs,  il  est  pourvu 
a son  remplacement  selon  le  mode 
fixe  pour  sa  nomination. 

Article  14 

Les  Parties  ont  le  droit  de 
nommer  auprds  de  la  Commission 


PACIFIC  SETTLEMENT  OF  INTERNATIONAL  DISPUTES 


xliii 


1899 


Article  11 

The  international  commissions 
of  inquiry  are  formed,  unless 
otherwise  stipulated,  in  the  man- 
ner fixed  by  Article  32  of  the 
present  convention. 


1907 

date  on  which  each  party  must 
deposit  its  statement  of  facts,  and, 
generally  speaking,  all  the  condi- 
tions upon  which  the  parties  have 
agreed. 

If  the  parties  consider  it  neces- 
sary to  appoint  assessors,  the 
convention  of  inquiry  shall  deter- 
mine the  mode  of  their  selection 
and  the  extent  of  their  powers. 

Article  11 

If  the  inquiry  convention  has 
not  determined  where  the  com- 
mission is  to  sit,  it  will  sit  at  The 
Hague. 

The  place  of  meeting,  once 
fixed,  can  not  he  altered  by  the 
commission  except  with  the  assent 
of  the  parties. 

If  the  inquiry  convention  has 
not  determined  what  languages  are 
to  he  employed,  the  question  shall 
he  decided  by  the  commission. 

Article  12 

Unless  an  undertaking  is  made 
to  the  contrary,  commissions  of 
inquiry  shall  be  formed  in  the 
manner  determined  by  Articles 
45  and  57  of  the  present  Conven- 
tion. 

Article  13 

Should  one  of  the  commission- 
ers or  one  of  the  assessors,  should 
there  he  any,  either  die,  or  resign, 
or  he  unable  for  any  reason  what- 
ever to  discharge  his  functions, 
the  same  procedure  is  followed  for 
filling  the  vacancy  as  was  followed 
for  appointing  him. 

Article  14 

The  parties  are  entitled  to  ap- 
point special  agents  to  attend  the 


THE  HAGUE  CONVENTIONS  OF  1899  AND  1907  FOR  THE 


Nliv 


1899  1907 

d’enquete  des  agents  speciaux 
avec  la  mission  de  Les  representer 
et  de  servir  d’intermediaires  entre 
Elies  et  la  Commission. 

Elies  sont,  en  outre,  autorisees 
d charger  des  conseils  ou  avocats 
nommes  par  Elies,  d’ exposer  et  de 
soutenir  Leurs  interets  devant  la 
Commission. 

Article  15 

Le  Bureau  International  de  la 
Cour  permanente  d’arbitrage  sert 
de  greffe  aux  Commissions  qui 
sikgent  a La  Haye,  et  mettra  ses 
locaux  et  son  organisation  a la 
disposition  des  Puissances  con- 
tractantes  pour  le  fonctionne- 
ment  de  la  Commission  d’en- 
quete. 


Article  16 

Si  la  Commission  siege  ailleurs 
qu’d  La  Haye,  elle  nomme  un 
Secretaire-General  dont  le  bureau 
lui  sert  de  greffe. 

Le  greffe  est  charge,  sous  I’au- 
torite  du  President,  de  I’organisa- 
tion  materielle  des  seances  de  la 
Commission,  de  la  redaction  des 
procks-verbaux  et,  pendant  le 
temps  de  I’enquete,  de  la  garde 
des  archives  qui  seront  ensuite 
versees  au  Bureau  International 
de  La  Haye. 


Article  17 

En  vue  de  faciliter  I’institu- 
tion  et  le  fonctionnement  des 
Commissions  d’enquete,  les 
Puissances  contractantes  recom- 
mandent  les  regies  suivantes  qui 
seront  applicables  d la  procedure 
d’enquete  en  tant  que  les  Parties 
n’adopteront  pas  d’autres  rkgles. 


PACIFIC  SETTLEMENT  OF  INTERNATIONAL  DISPUTES 


xlv 


1899 


1907 

commission  of  inquiry,  whose  duty 
it  is  to  represent  them  and  to  act 
as  intermediaries  between  them 
and  the  commission. 

They  are  further  authorized  to 
engage  counsel  or  advocates,  ap- 
pointed by  themselves,  to  state 
their  case  and  uphold  their  inter- 
ests before  the  commission. 

Article  15 

The  International  Bureau  of 
the  Permanent  Court  of  Arbitra- 
tion acts  as  registry  for  the  com- 
missions which  sit  at  The  Hague, 
and  shall  place  its  offices  and  staff 
at  the  disposal  of  the  contracting 
Powers  for  the  use  of  the  commis- 
sion of  inquiry. 


Article  16 

If  the  commission  meets  else- 
where than  at  The  Hague,  it  ap- 
points a secretary  general,  whose 
office  serves  as  registry. 

It  is  the  function  of  the  registry, 
under  the  control  of  the  presi- 
dent, to  make  the  necessary 
arrangements  for  the  sittings  of 
the  commission,  the  preparation 
of  the  minutes,  and,  while  the 
inquiry  lasts,  for  the  charge  of 
the  archives,  which  shall  subse- 
quently be  transferred  to  the  In- 
ternational Bureau  at  The  Hague. 

Article  17 

In  order  to  facilitate  the  con- 
stitution and  working  of  commis- 
sions of  inquiry,  the  contracting 
Powers  recommend  the  following 
rules,  which  shall  be  applicable 
to  the  inquiry  procedure  in  so  far 
as  the  parties  do  not  adopt  other 
rules. 


xlvi 


THE  HAGUE  CONVENTIONS  OF  1899  AND  1907  FOR  THE 


1899  1907 

Article  18 

La  Commission  reglera  les  de- 
tails de  la  procedure  non  prevus 
dans  la  convention  speciale  d’en- 
quete  ou  dans  la  presente  Con- 
vention, et  procedera  d toutes  les 
formalites  que  comporte  I’admi- 
nistration  des  preuves. 

Article  19 

L’enquete  a lieu  contradictoire- 
ment.^ 

Aux  dates  prevues,  chaque 
Partie  communique  a la  Commis- 
sion et  a Vautre  Partie  les  exposes 
des  fails,  s’il  y a lieu,  et,  dans  tous 
les  cos,  les  actes,  pieces  et  docu^ 
ments  qu’Elle  juge  utiles  a la 
decouverte  de  la  verite,  ainsi  que 
la  lisle  des  temoins  et  des  experts 
qu’elle  desire  faire  entendre. 


Article  20 

La  Commission  a la  faculte, 
avec  I’ assentiment  des  Parties,  de 
se  transporter  momentanement 
sur  les  lieux  od  elle  juge  utile  de 
recourir  d ce  moyen  d’informa- 
tion  ou  d’y  deleguer  un  ou  plu- 
sieurs  de  ses  membres.  L’autori- 
sation  de  I’Ptat  sur  le  territoire 
duquel  il  doit  etre  procede  d cette 
information  devra  etre  obtenue. 

Article  21 

Toutes  constatations  materi- 
elles,  et  toutes  msites  des  lieux 
doivent  etre  faites  en  presence 
des  agents  et  conseils  des  Parties 
ou  eux  dument  appeles. 

Article  22 

La  Commission  a le  droit  de 
solliciter  de  I’une  ou  Vautre 


iSee  footnote  on  opposite  page. 


PACIFIC  SETTLEMENT  OF  INTERNATIONAL  DISPUTES 


xlvii 


1899 


1907 

Article  18 

The  commission  shall  settle  the 
details  of  the  procedure  not  cov- 
ered by  the  special  inquiry  con- 
vention or  the  present  Conven- 
tion, and  shall  arrange  all  the  for- 
malities required  for  dealing  with 
the  evidence. 

Article  19 

On  the  inquiry  both  sides  must 
be  heard/ 

At  the  dates  fixed,  each  party 
communicates  to  the  commis- 
sion and  to  the  other  party  the 
statements  of  facts,  if  any,  and, 
in  all  cases,  the  instruments,  pa- 
pers, and  documents  which  it  con- 
siders useful  for  ascertaining  the 
truth,  as  well  as  the  list  of  wit- 
nesses and  experts  whose  evidence 
it  wishes  to  be  heard. 

Article  20 

The  commission  is  entitled, 
with  the  assent  of  the  Powers,  to 
move  temporarily  to  any  place 
where  it  considers  it  may  be  useful 
to  have  recourse  to  this  means 
of  inquiry  or  to  send  one  or  more 
of  its  members.  Permission  must 
be  obtained  from  the  State  on 
whose  territory  it  is  proposed  to 
hold  the  inquiry. 

Article  21 

Every  investigation,  and  every 
examination  of  a locality,  must  be 
made  in  the  presence  of  the  agents 
and  counsel  of  the  parties  or  after 
they  have  been  duly  summoned. 

Article  22 

The  commission  is  entitled  to 
ask  from  either  party  for  such  ex- 


^See  Article  10  of  the  1899  Convention. 


xlviii  THE  HAGUE  CONVENTIONS  OF  1899  AND  1907  FOR  THE 


1899 


Article  12 

Les  Puissances  en  litige  s’en- 
gagent  a foumir  a la  Commission 
intemationale  d’enquete,  dans  la 
plus  large  mesure  qu’Elles  juge- 
ront  possible,  tous  les  moyens  et 
toutes  les  facilites  necessaires 
pour  la  connaissance  complete 
et  I’appreciation  exacte  des  fails 
en  question. 


1907 

Partie  idles  explications  ou  in- 
fonnations  qu'elle  juge  utiles. 

Article  23 

Les  Parties  s’engagent  a four- 
nir  a la  Commission  d’enquete, 
dans  la  plus  large  mesure 
qu’Elles  jugeront  possible,  tous 
les  moyens  et  toutes  les  facilites 
necessaires  pour  la  connaissance 
complete  et  I’appreciation  exacte 
des  faits  en  question. 

Elies  s’engagent  a user  des 
moyens  dont  Elies  disposent 
d’aprks  leur  legislation  interieure, 
pour  assurer  la  comparution  des 
temoins  ou  des  experts  se  trou- 
vant  sur  leur  territoire  et  cites 
devant  la  Commission. 

Si  ceux-ci  ne  peuvent  com- 
paraitre  devant  la  Commission, 
Elies  feront  proceder  a leur  audi- 
tion devant  leurs  autorites  com- 
petentes. 

Article  24 

Pour  toutes  les  notifications 
que  la  Commission  aurait  d faire 
sur  le  territoire  d’une  tierce  Puis- 
sance contractante,  la  Commis- 
sion s’adressera  directement  au 
Gouvernement  de  cette  Puis- 
sance. II  en  sera  de  mime  s’il 
s’agit  de  faire  proceder  sur  place 
a r etablissement  de  tous  moyens 
de  preuve. 

Les  requites  adressees  d cet 
effet  seront  executees  suivant  les 
moyens  dont  la  Puissance  requise 
dispose  d’apres  sa  legislation  in- 
terieure. Elies  ne  peuvent  itre 
refusees  que  si  cette  Puissance  les 
juge  de  nature  d porter  atteinte  d 
Sa  souverainete  ou  d Sa  securite. 


PACIFIC  SETTLEMENT  OF  INTERNATIONAL  DISPUTES 


xlix 


1899 


Article  12 

The  Powers  in  dispute  engage 
to  supply  the  international  com- 
mission of  inquiry,  as  fully  as 
they  may  think  possible,  with  all 
means  and  facilities  necessary  to 
enable  it  to  be  completely  ac- 
quainted with  and  to  accurately 
understand  the  facts  in  question. 


1907 

planations  and  information  as  it 
considers  necessary. 

Article  23 

The  parties  undertake  to  sup- 
ply the  commission  of  inquiry,  as 
fully  as  they  may  think  possible, 
with  all  means  and  facilities  neces- 
sary to  enable  it  to  become  com- 
pletely acquainted  with,  and  to 
accurately  understand,  the  facts 
in  question. 

They  undertake  to  make  use  of 
the  means  at  their  disposal,  under 
their  municipal  law,  to  insure  the 
appearance  of  the  witnesses  or  ex- 
perts who  are  in  their  territory 
and  have  been  summoned  before 
the  commission. 

If  the  witnesses  or  experts  are 
unable  to  appear  before  the  conu- 
mission,  the  parties  will  arrange 
for  their  evidence  to  be  taken  be- 
fore the  qualified  officials  of  their 
own  country. 

Article  24 

For  all  notices  to  be  served  by 
the  commission  in  the  territory  of 
a third  contracting  Power,  the 
commission  shall  apply  direct  to 
the  Government  of  the  said  Pow- 
er. The  same  rule  applies  in  the 
case  of  steps  being  taken  on  the 
spot  to  procure  evidence. 


The  requests  for  this  purpose 
are  to  be  executed  so  far  as  the 
means  at  the  disposal  of  the 
Power  applied  to  under  its  munici- 
pal law  allow.  They  can  not 
be  rejected  unless  the  Power  in 
question  considers  they  are  cal- 
culated to  impair  its  sovereign 
rights  or  its  safety. 


1 


THE  HAGUE  CONVENTIONS  OF  1899  AND  1907  FOR  THE 


1899  1907 

La  Commission  aura  aussi 
tou jours  la  faculte  de  recourir  a 
V interme diair e de  la  Puissance 
sur  le  territoire  de  laquelle  elle  a 
son  siege. 

Article  25 

Les  temoins  et  les  experts  sont 
appeles  d la  requite  des  Parties 
ou  d’office  par  la  Commission,  et, 
dans  tous  les  cas,  par  V inter - 
mediaire  du  Gouvernement  de 
I’Ptat  sur  le  territoire  duquel  Us  se 
trouvent. 

Les  temoins  sont  entendus, 
successivement  et  separement,  en 
presence  des  agents  et  des  con- 
seils  et  dans  tin  ordre  d fixer  par 
la  Commission. 

Article  26 

Uinterrogatoire  des  temoins 
est  conduit  par  le  President. 

Les  membres  de  la  Commis- 
sion peuvent  neanmoins  poser  d 
chaque  temoin  les  questions  qu’ils 
croient  convenables  pour  eclair- 
cir  ou  completer  sa  deposition, 
ou  pour  se  renseigner  sur  tout  ce 
qui  concerne  le  temoin  dans  les 
limites  necessaires  d la  manifesta- 
tion de  la  verite. 

Les  agents  et  les  conseils  des 
Parties  ne  peuvent  interrompre 
le  temoin  dans  sa  deposition,  ni 
lui  faire  aucune  interpellation 
directe,  mais  peuvent  demander 
au  President  de  poser  au  temoin 
telles  questions  complementaires 
qu’ils  jugent  utiles. 

Article  27 

Le  temoin  doit  deposer  sans 
qu’il  lui  soit  permis  de  lire  aucun 
pro  jet  ecrit.  Toutefois,  il  peut 
etre  autorise  par  le  President  d 
Raider  de  notes  ou  documents  si 


PACIFIC  SETTLEMENT  OF  INTERNATIONAL  DISPUTES 


li 


1899  1907 

The  commission  will  equally 
he  always  entitled  to  act  through 
the  Power  on  whose  territory  it 
sits. 


Article  25 

The  witnesses  and  experts  are 
summoned  on  the  request  of  the 
parties  or  by  the  commission  of 
its  own  motion,  and,  in  every 
case,  through  the  Government  of 
the  State  in  whose  territory  they 
are. 

The  witnesses  are  heard  in  suc- 
cession and  separately,  in  the 
presence  of  the  agents  and  coun- 
sel, and  in  the  order  fixed  by  the 
commission. 

Article  26 

The  examination  of  witnesses 
is  conducted  by  the  president. 

The  members  of  the  commis- 
sion may  however  put  to  each 
witness  questions  which  they 
consider  likely  to  throw  light  on 
and  complete  his  evidence,  or  get 
information  on  any  point  con- 
cerning the  witness  within  the 
limits  of  what  is  necessary  in 
order  to  get  at  the  truth. 

The  agents  and  counsel  of  the 
parties  may  not  interrupt  the  wit- 
ness when  he  is  making  his  state- 
ment, nor  put  any  direct  question 
to  him,  but  they  may  ask  the 
president  to  put  such  additional 
questions  to  the  witness  as  they 
think  expedient. 

Article  27 

The  witness  must  give  his  evi- 
dence without  being  allowed  to 
read  any  written  draft.  He  may, 
however,  be  permitted  by  the 
president  to  consult  notes  or 


lii 


THE  HAGUE  CONVENTIONS  OF  1899  AND  1907  FOR  THE 


1899  1907 

la  nature  des  faits  rapportes  en 
necessite  I’emploi. 


Article  28 

Procbs-verbal  de  la  deposition 
du  temoin  est  dresse  seance 
tenante  et  lecture  en  est  donnee 
au  temoin.  Le  temoin  peut  y 
faire  tels  changements  et  addi- 
tions que  bon  lui  semble  et  qui 
seront  consignee  a la  suite  de  sa 
deposition. 

Lecture  faite  au  temoin  de 
Vensemble  de  sa  deposition^  le  te- 
moin est  requis  de  signer. 

Article  29 

Les  agents  sont  autorises,  au 
cours  ou  a la  fin  de  Venquete,  d 
presenter  par  ecrit  d la  Commis- 
sion et  d V autre  Partie  tels  dires, 
requisitions  ou  resumes  de  fait, 
qu’ils  jugent  utiles  d la  decou- 
verte  de  la  verite. 


Article  30 

Les  deliberations  de  la  Com- 
mission ont  lieu  d huis  clos  et 
restent  secretes. 

Toute  decision  est  prise  d la 
majorite  des  membres  de  la 
Commission. 

Le  refus  d’un  membre  de 
prendre  part  au  vote  doit  Hre 
constate  dans  le  procks-verbal. 

Article  31 

Les  seances  de  la  Commission 
ne  sont  publiques  et  les  procks- 
verbaux  et  documents  de  Ven- 
quete ne  sont  rendus  publics 
qu’en  vertu  d’une  decision  de  la 
Commission,  prise  avec  I’assen- 
timent  des  Parties. 


PACIFIC  SETTLEMENT  OF  INTERNATIONAL  DISPUTES 


liii 


1899  1907 

documents  if  the  nature  of  the 
facts  referred  to  necessitates  their 
employment. 

Article  28 

A minute  of  the  evidence  of  the 
witness  is  drawn  up  forthwith  and 
read  to  the  witness.  The  latter 
may  make  such  alterations  and 
additions  as  he  thinks  necessary, 
which  will  he  recorded  at  the  end 
of  his  statement. 

When  the  whole  of  his  state- 
ment has  been  read  to  the  witness, 
he  is  asked  to  sign  it. 


Article  29 

The  agents  are  authorized,  in 
the  course  of  or  at  the  close  of 
the  inquiry,  to  present  in  writing 
to  the  commission  and  to  the 
other  party  such  statements, 
requisitions,  or  summaries  of  the 
facts  as  they  consider  useful  for 
ascertaining  the  truth. 

Article  30 

The  commission  considers  its 
decisions  in  private  and  the  pro- 
ceedings are  secret. 

All  questions  are  decided  by  a 
majority  of  the  members  of  the 
commission. 

If  a member  declines  to  vote, 
the  fact  must  be  recorded  in  the 
minutes. 


Article  31 

The  sittings  of  the  commission 
are  not  public,  nor  the  minutes 
and  documents  connected  with 
the  inquiry  published  except  in 
virtue  of  a decision  of  the  com- 
mission taken  with  the  consent  of 
the  parties. 


liv 


THE  HAGUE  CONVENTIONS  OF  1899  AND  1907  FOR  THE 


1899 


Article  13 

La  Commission  internationale 
d’enquete  presente  aux  Puis- 
sances en  litige  son  rapport  signe 
par  tous  les  membres  de  la  Com- 
mission. 


Article  14 

Le  rapport  de  la  Commission 
Internationale  d’enquete,  limite  a 
la  constatation  des  faits,  n’a  nulle- 
ment  le  caractere  d’une  Sentence 
arbitrale.  II  laisse  aux  Puis- 
sances en  litige  une  entiere 
liberte  pour  la  suite  a donner  a 
cette  constatation. 


Titre  IV. — De  l’ Arbitrage  In- 
ternational 

Chapitre  I. — De  la  Justice 
arbitrale 

Article  15 

L’arbitrage  international  a pour 
objet  le  reglament  de  litiges  entre 


1907 

Article  32 

Les  Parties  ayant  presente  tous 
les  eclaircissements  et  preuves, 
tous  les  temoins  ayant  ete  enten- 
dus,  le  President  prononce  la  clo- 
ture de  Venquete  et  la  Commis- 
sion s’ ajourne  pour  deliberer  et 
rediger  son  rapport. 

Article  33 

Le  rapport  est  signe  par  tous 
les  membres  de  la  Commission. 

Si  un  des  membres  refuse  de 
signer,  mention  en  est  faite;  le 
rapport  reste  neanmoins  valable. 

Article  34 

Le  rapport  de  la  Commission 
est  lu  en  seance  publique,  les 
agents  et  les  conseils  des  Parties 
presents  oti  dument  appeles. 

Un  exemplaire  du  rapport  est 
remis  a chaque  Partie. 

Article  35 

Le  rapport  de  la  Commission, 
limite  a la  constatation  des  faits, 
n’a  nullement  le  caractere  d’une 
sentence  arbitrale.  II  laisse  aux 
Parties  une  entiere  liberte  pour 
la  suite  a donner  a cette  consta- 
tation. 

Article  36 

Chaque  Partie  supporte  ses 
propres  frais  et  une  part  egale 
des  frais  de  la  Commission. 

Titre  IV. — De  l’ Arbitrage  In- 
ternational 

Chapitre  I. — De  la  Justice 
arbitrale 

Article  37 

L’arbitrage  international  a pour 
objet  le  reglement  de  litiges  entre 


PACIFIC  SETTLEMENT  OF  INTERNATIONAL  DISPUTES 


Iv 


1899 


Article  13 

The  international  commission 
of  inquiry  communicates  its  re- 
port to  the  conflicting  Powers, 
signed  by  all  the  members  of  the 
commission. 


Article  14 

The  report  of  the  international 
commission  of  inquiry  is  limited 
to  a statement  of  facts,  and  has 
in  no  way  the  character  of  an 
arbitral  award.  It  leaves  the 
conflicting  Powers  entire  freedom 
as  to  the  effect  to  be  given  to  this 
statement. 


Title  IV. — On  International 
Arbitration 

Chapter  I. — On  the  System  of 
Arbitration 

Article  15 

International  arbitration  has 
for  its  object  the  settlement  of 


1907 

Article  32 

After  the  parties  have  pre- 
sented all  • the,  explanations  and 
evidence,  and  the  witnesses  have 
all  been  heard,  the  president  de- 
clares the  inquiry  terminated,  and 
the  commission  adjourns  to  de- 
liberate and  to  draw  up  its  re- 
port. 

Article  33 

The  report  is  signed  by  all  the 
members  of  the  commission. 

If  one  of  the  members  refuses 
to  sign,  the  fact  is  mentioned;  but 
the  validity  of  the  report  is  not 
affected. 

Article  34 

The  report  of  the  commission 
is  read  at  a public  sitting,  the 
agents  and  counsel  of  the  parties 
being  present  or  duly  summoned. 

A copy  of  the  report  is  given  to 
each  party. 

Article  35 

The  report  of  the  commission 
is  limited  to  a statement  of  facts, 
and  has  in  no  way  the  character 
of  an  award.  It  leaves  to  the 
parties  entire  freedom  as  to  the 
effect  to  be  given  to  the  state- 
ment. 

Article  36 

Each  party  pays  its  own  ex- 
penses and  an  equal  share  of  the 
expenses  incurred  by  the  commis- 
sion. 

Part  IV. — International 

Arbitration 

Chapter  I. — The  System  of  Arbi- 
tration 

Article  37 

International  arbitration  has  for 
its  object  the  settlement  of  dis- 


Ivi 


THE  HAGUE  CONVENTIONS  OF  1899  AND  1907  FOR  THE 


1899 

les  £tats  par  des  juges  de  leur 
choix  et  sur  la  base  du  respect 
du  droit. 


Article  16 

Dans  les  questions  d’ordre  juri- 
dique,  et  en  premier  lieu  dans 
les  questions  ^’interpretation  ou 
d’application  des  Conventions  in- 
temationales,  I’arbitrage  est  re- 
connu  par  les  Puissances  sig- 
nataires  comme  le  moyen  le 
plus  efficace  et  en  meme  temps 
le  plus  equitable  de  regler  les 
litiges  qui  n’ont  pas  ete  resolus 
par  les  voies  diplomatiques. 


Article  17 

La  Convention  d’arbitrage  est 
conclue  pour  des  contestations 
deja  nees  ou  pour  des  contesta- 
tions eventuelles. 

Elle  pent  concemer  tout  litige 
ou  seulement  les  litiges  d’une 
categorie  determinee. 

Article  18 

La  Convention  d’arbitrage  im- 
plique  I’engagement  de  se  sou- 
mettre  de  bonne  foi  a la  Sentence 
arbitrale.’* 


1907 

les  fitats  par  des  juges  de  leur 
choix  et  sur  la  base  du  respect 
du  droit. 

Le  recours  a I’arbitrage  im- 
plique  I’engagement  de  se  sou- 
mettre  de  bonne  foi  a la  sentence.^ 

Article  38 

Dans  les  questions  d’ordre  juri- 
dique,  et  en  premier  lieu,  dans 
les  questions  d’interpretation  ou 
d’application  des  Conventions  in- 
ternationales,  I’arbitrage  est  re- 
connu  par  les  Puissances  contrac- 
tantes  comme  le  moyen  le  plus 
efficace  et  en  m«ne  temps  le 
plus  equitable  de  regler  les 
litiges  qui  n’ont  pas  ete  resolus 
par  les  voies  diplomatiques. 

En  consequence,  il  serait  de- 
sirable que,  dans  les  litiges  sur 
les  questions  susmentionnees,  les 
Puissances  contractantes  eussent, 
le  cos  echeant,  recours  d I’arbi- 
trage, en  tant  que  les  circon- 
stances  le  permettraient. 

Article  39 

La  Convention  d’arbitrage  est 
conclue  pour  des  contestations 
deja  nees  ou  pour  des  contesta- 
tions eventuelles. 

Elle  peut  concemer  tout  litige 
ou  seulement  les  litiges  d’une 
categorie  determinee. 


^See  footnote  1,  opposite  page. 
^See  footnote  4,  opposite  page. 


PACIFIC  SETTLEMENT  OF  INTERNATIONAL  DISPUTES 


Ivii 


1899 

differences  between  States  by 
judges  of  their  own  choice,  and 
on  the  basis  of  respect  for  law. 


Article  16* 

In  questions  of  a legal  nature, 
and  especially  in  the  interpreta- 
tion or  application  of  interna- 
tional conventions,  arbitration  is 
recognized  by  the  signatory  Pow- 
ers as  the  most  effective,  and  at 
the  same  time  the  most  equitable, 
means  of  settling  disputes  which 
diplomacy  has  failed  to  settle. 


Article  17* 

The  arbitration  convention  is 
concluded  for  questions  already 
existing  or  for  questions  which 
may  arise  eventually. 

It  may  embrace  any  dispute  or 
only  disputes  of  a certain  cate- 
gory. 

Article  18 

The  arbitration  convention  im- 
plies the  engagement  to  submit 
loyally  to  the  award.^ 


1907 

putes  between  States  by  judges  of 
their  own  choice  and  on  the  basis 
of  respect  for  law. 

Recourse  to  arbitration  implies 
an  engagement  to  submit  in  good 
faith  to  the  award.^ 

Article  38* 

In  questions  of  a legal  nature, 
and  especially  in  the  interpreta- 
tion or  application  of  interna- 
tional conventions,  arbitration  is 
recognized  by  the  contracting 
Powers  as  the  most  effective,  and, 
at  the  same  time,  the  most  equi- 
table means  of  settling  disputes 
which  diplomacy  has  failed  to 
settle. 

Consequently,  it  would  he  de- 
sirable that,  in  disputes  about  the 
above-mentioned  questions,  the 
contracting  Powers  should,  if  the 
case  arose,  have  recourse  to  arbi- 
tration, in  so  far  as  circumstances 
permit. 

Article  39* 

The  arbitration  convention  is 
concluded  for  questions  already 
existing  or  for  questions  which 
may  arise  eventually. 

It  may  embrace  any  dispute  or 
only  disputes  of  a certain  cate- 
gory.* 


^Cf.  Articles  18  and  31  of  the  1899  Convention. 

^See  the  reservations  of  Roumania  respecting  Articles  16.  17  and  19  of  the 
1899  Convention  and  the  corresponding  articles  of  the  1907  Convention,  post, 
pp.  ciii,  cvi. 

^Chile  also  made  a reservation  respecting  Article  39. 

*Cf.  Article  37,  paragraph  2,  of  the  1907  Convention. 


Iviii 


THE  HAGUE  CONVENTIONS  OF  1899  AND  1907  FOR  THE 


1899 

Article  19 

Independamment  des  Traites 
generaux  ou  particuliers  qui  sti- 
pulent  actuellement  I’obligation 
du  recours  a I’arbitrage  pour  les 
Puissances  signataires,  ces  Puis- 
sances se  reservent  de  conclure, 
soit  avant  la  ratification  du 
present  Acte,  soit  posterieure- 
ment,  des  accords  nouveaux, 
generaux  ou  particuliers,  en  vue 
d’etendre  I’arbitrage  obligatoire 
a tous  les  cas  qu’Elles  jugeront 
possible  de  lui  soumettre. 

Chapitre  II. — De  la  Cour  perma- 
nente  d’arhitrage 
Article  20 

Dans  le  but  de  faciliter  le  re- 
cours immediat  a I’arbitrage  pour 
les  ditferends  internationaux  qui 
n’ont  pu  etre  regies  par  la  voie 
diplomatique,  les  Puissances  sig- 
nataires s’engagent  a organiser 
une  Cour  permanente  d’arbitrage, 
accessible  en  tout  temps  et  fonc- 
tionnant,  sauf  stipulation  con- 
traire  des  Parties,  conformement 
aux  Regies  de  procedure  in- 
serees  dans  la  presente  Conven- 
tion. 


Article  21 

La  Cour  permanente  sera  com- 
petente  pour  tous  les  cas  d’arbi- 
tfage,  a moins  qu’il  n’y  ait  entente 
entre  les  Parties  pour  I’etablisse- 
ment  d’une  juridiction  speciale. 

Article  22 


Un  Bureau  international  eta- 


1907 

Article  40 

Independamment  des  Traites 
generaux  ou  particuliers  qui 
stipulent  actuellement  I’obliga- 
tion  du  recours  a I’arbitrage  pour 
les  Puissances  contractantes,  ces 
Puissances  se  reservent  de  con- 
clure des  accords  nouveaux,  ge- 
neraux ou  particuliers,  en  vue 
d’etendre  I’arbitrage  obligatoire 
a tous  les  cas  qu’Elles  jugeront 
possible  de  lui  soumettre. 


Chapitre  II. — De  la  Cour  perma- 
nente d’arhitrage 

Article  41 

Dans  le  but  de  faciliter  le  re- 
cours immediat  a I’arbitrage  pour 
les  differends  internationaux  qui 
n’ont  pu  etre  regies  par  la  voie 
diplomatique,  les  Puissances  con- 
tractantes  s’engagent  a main- 
tenir,  telle  qu’elle  a ete  etablie 
par  la  Premiere  Conference  de  la 
Paix,  la  Cour  permanente  d’arbi- 
trage, accessible  en  tout  temps 
et  fonctionnant,  sauf  stipulation 
contraire  des  Parties,  conforme- 
ment aux  Regies  de  procedure  in- 
serees  dans  la  presente  Conven- 
tion. 

Article  42 

La  Cour  permanente  est  com- 
petente  pour  tous  les  cas  d’arbi- 
trage, a moins  qu’il  n’y  ait  entente 
entre  les  Parties  pour  I’etablisse- 
ment  d’une  juridiction  speciale. 

Article  43 

La  Cour  permanente  a son 
sihge  a La  Haye.^ 

Un  Bureau  International  sert 


^See  footnote  2,  opposite  page. 


PACIFIC  SETTLEMENT  OF  INTERNATIONAL  DISPUTES 


lix 


1899 

Article  19^ 

Independently  of  general  or 
private  treaties  expressly  stipu- 
lating recourse  to  arbitration  as 
obligatory  on  the  signatory  Pow- 
ers, these  Powers  reserve  to  them- 
selves the  right  of  concluding, 
either  before  the  ratification  of 
the  present  Act  or  later,  new 
agreements,  general  or  private, 
with  a view  to  extending  obliga- 
tory arbitration  to  all  cases  which 
they  may  consider  it  possible  to 
submit  to  it. 

Chapter  II. — On  the  Permanent 
Court  of  Arbitration 

Article  20 

With  the  object  of  facilitating 
an  immediate  recourse  to  arbitra- 
tion for  international  differences, 
which  it  has  not  been  possible  to 
settle  by  diplomacy,  the  signa- 
tory Powers  undertake  to  organ- 
ize a Permanent  Court  of  Arbi- 
tration, accessible  at  all  times 
and  operating,  unless  otherwise 
stipulated  by  the  parties,  in  ac- 
cordance with  the  rules  of  pro- 
cedure inserted  in  the  present 
Convention. 


Article  21 

The  Permanent  Court  shall  be 
competent  for  all  arbitration 
cases,  unless  the  parties  agree  to 
institute  a special  tribunal. 


1907 

Article  40^ 

Independently  of  general  or  pri- 
vate treaties  expressly  stipulat- 
ing recourse  to  arbitration  as  obli- 
gatory on  the  contracting  Powers, 
the  said  Powers  reserve  to  them- 
selves the  right  of  concluding  new 
agreements,  general  or  particu- 
lar, with  a view  to  extending 
compulsory  arbitration  to  all 
cases  which  they  may  consider  it 
possible  to  submit  to  it. 


Chapter  II. — The  Permanent 
Court  of  Arbitration 
Article  41 

With  the  object  of  facilitating 
an  immediate  recourse  to  arbitra- 
tion for  international  differences, 
which  it  has  not  been  possible  to 
settle  by  diplomacy,  the  contract- 
ing Powers  undertake  to  main- 
tain the  Permanent  Court  of  Ar- 
bitration, as  established  by  the 
First  Peace  Conference,  accessible 
at  all  times,  and  operating,  unless 
otherwise  stipulated  by  the  par- 
ties, in  accordance  with  the  rules 
of  procedure  inserted  in  the  pres- 
ent Convention. 

Article  42 

The  Permanent  Court  is  compe- 
tent for  all  arbitration  cases,  un- 
less the  parties  agree  to  institute 
a special  tribunal. 


Article  22  Article  43 

The  Permanent  Court  sits  at 
The  Hague.* 

An  International  Bureau,  estab-  An  International  Bureau  serves 


^See  footnote  2,  ante,  p.  Ivii. 

2Cf.  Article  25,  paragraph  1,  of  the  1899  Convention. 


lx 


THE  HAGUE  CONVENTIONS  OF  1899  AND  1907  FOR  THE 


1899 

bli  a La  Haye  sert  de  greffe  a la 
Cour. 

Ce  Bureau  est  rintermediaire 
des  communications  relatives  aux 
reunions  de  celle-ci. 

II  a la  garde  des  archives  et  la 
gestion  de  toutes  les  affaires  ad- 
ministratives. 

Les  Puissances  signataires  s’en- 
gagent  a communiquer  au  Bureau 
international  de  La  Haye,  une 
copie  certifiee  conforme  de  toute 
stipulation  d’arbitrage  inter- 
venue  entre  elles  et  de  toute 
sentence  arbitrale  les  concemant 
et  rendue  par  des  juridictions 
speciales. 

Elles  s’engagent  a communi- 
quer de  meme  au  Bureau,  les 
lois,  reglements  et  documents 
constatant  eventuellement  I’exe- 
cution  des  sentences  rendues  par 
la  Cour, 

Article  23 

Chaque  Puissance  sig^ataire 
designera,  dans  les  trois  mois  qui 
suivront  la  ratification  par  elle  du 
presente  Acte,  quatre  personnes 
au  plus,  d’une  competence  re- 
connue  dans  les  questions  de  droit 
international,  jouissant  de  la  plus 
haute  consideration  morale  et 
disposees  a accepter  les  fonctions 
d’arbitres. 

Les  personnes  ainsi  designees 
seront  inscrites,  au  titre  de  mem- 
bres  de  la  Cour,  sur  une  liste  qui 
sera  notifiee  a toutes  les  Puis- 
sances signataires  par  les  soins  du 
Bureau. 

Toute  modification  a la  liste  des 
Arbitres  est  portee,  par  les  soins 
du  Bureau,  a la  connaissance  des 
Puissances  signataires. 

Deux  ou  plusieurs  Puissances 
peuvent  s’entendre  pour  la  desig- 


1907 

de  greffe  a la  Cour;  il  est  rin- 
termediaire des  communications 
relatives  aux  reunions  de  celle-ci; 
il  a la  garde  des  archives  et  la 
gestion  de  toutes  les  affaires  ad- 
ministratives. 


Les  Puissances  contractantes 
s’engagent  a communiquer  au 
Bureau,  aussitot  que  possible,  une 
copie  certifiee  conforme  de  toute 
stipulation  d’arbitrage  intervenue 
entre  Elles  et  de  toute  sentence 
arbitrale  Les  concemant  et  ren- 
due par  des  juridictions  speciales. 

Elles  s’engagent  a communi- 
quer de  meme  au  Bureau  les  lois, 
reglements  et  documents  consta- 
tant eventuellement  I’execution 
des  sentences  rendues  par  la 
Cour. 

Article  44 

Chaque  Puissance  contrac- 
tante  designe  quatre  personnes 
au  plus,  d’une  competence  recon- 
nue  dans  les  questions  de  droit 
international,  jouissant  de  la  plus 
haute  consideration  morale  et  dis- 
posees a accepter  les  fonctions 
d’arbitres. 


Les  personnes  ainsi  designees 
sont  inscrites,  au  titre  de  Mem- 
bres  de  la  Cour,  sur  une  liste  qui 
sera  notifiee  a toutes  les  Puis- 
sances contractantes  par  les  soins 
du  Bureau. 

Toute  modification  a la  liste  des 
arbitres  est  portee,  par  les  soins 
du  Bureau,  a la  connaissance 
des  Puissances  contractantes. 

Deux  ou  plusieurs  Puissances 
peuvent  s’entendre  pour  la  de- 


PACIFIC  SETTLEMENT  OF  INTERNATIONAL  DISPUTES 


Ixi 


1899 

lished  at  The  Hague,  serves  as 
record  office  for  the  Court. 

This  Bureau  is  the  channel  for 
communications  relative  to  the 
meetings  of  the  Court. 

It  has  the  custody  of  the 
archives  and  conducts  all  the 
administrative  business. 

The  signatory  Powers  under- 
take to  communicate  to  the  Inter- 
national Bureau  at  The  Hague  a 
duly  certified  copy  of  any  con- 
ditions of  arbitration  arrived  at 
between  them,  and  of  any  award 
concerning  them  delivered  by 
special  tribunals. 

They  undertake  also  to  commu- 
nicate to  the  Bureau  the  laws, 
regulations,  and  documents 
eventually  showing  the  execution 
of  the  awards  given  by  the  Court. 

Article  23 

Within  the  three  months  fol- 
lowing its  ratification  of  the  pres- 
ent Act,  each  signatory  Power 
shall  select  four  persons  at  the 
most,  of  known  competency  in 
questions  of  international  law, 
of  the  highest  moral  reputation, 
and  disposed  to  accept  the  duties 
of  arbitrators. 

The  persons  thus  selected  shall 
be  inscribed,  as  members  of  the 
Court,  in  a list  which  shall  be 
notified  by  the  Bureau  to  all  the 
signatory  Powers. 

Any  alteration  in  the  list  of 
arbitrators  is  brought  by  the 
Bureau  to  the  knowledge  of  the 
signatory  Powers. 

Two  or  more  Powers  may  agree 
on  the  selection  in  common  of  one 


1907 

as  registry  for  the  Court.  It  is 
the  channel  for  communications 
relative  to  the  meetings  of  the 
Court;  it  has  charge  of  the  ar- 
chives and  conducts  all  the  ad- 
ministrative business. 


The  contracting  Powers  under- 
take to  communicate  to  the  Bu- 
reau, as  soon  as  possible,  a certi- 
fied copy  of  any  conditions  of  ar- 
bitration arrived  at  between  them 
and  of  any  award  concerning 
them  delivered  by  a special  tri- 
bunal. 

They  likewise  undertake  to 
communicate  to  the  Bureau  the 
laws,  regulations,  and  documents 
eventually  showing  the  execution 
of  the  awards  given  by  the  Court. 

Article  44 

Each  contracting  Power  selects 
four  persons  at  the  most,  of 
known  competency  in  questions 
of  international  law,  of  the  high- 
est moral  reputation,  and  dis- 
posed to  accept  the  duties  of  ar- 
bitrator. 


The  persons  thus  selected  are 
inscribed,  as  members  of  the 
Court,  in  a list  which  shall  be  no- 
tified to  all  the  contracting  Pow- 
ers by  the  Bureau. 

Any  alteration  in  the  list  of 
arbitrators  is  brought  by  the 
Bureau  to  the  knowledge  of  the 
contracting  Powers. 

Two  or  more  Powers  may  agree 
on  the  selection  in  common  of  one 


Ixii 


THE  HAGUE  CONVENTIONS  OF  1899  AND  1907  FOR  THE 


1899 

nation  en  commun  d’un  ou  de 
plusieurs  membres. 

La  m^e  personne  pent  etre 
designee  par  des  Puissances  dif- 
ferentes. 

Les  membres  de  la  Cour  sont 
nommes  pour  un  terme  de  six 
ans.  Leur  mandat  pent  etre 
renouvele. 

En  cas  de  deces  ou  de  retraite 
d’un  membre  de  la  Cour,  il  est 
pourvu  a son  remplacement  selon 
le  mode  fixe  pour  sa  nomination. 


Article  24 

Lorsque  les  Puissances  signa- 
taires  veulent  s’adresser  a la  Cour 
permanente  pour  le  reglement 
d’un  differend  survenu  entre  elles, 
le  choix  des  Arbitres  appeles  a 
former  le  Tribunal  competent 
pour  statuer  sur  ce  differend, 
doit  etre  fait  dans  la  liste  gene- 
rale  des  Membres  de  la  Cour. 

A defaut  de  constitution  du 
Tribunal  arbitral  par  I’accord  im- 
mediat  des  Parties,  il  est  precede 
de  la  maniere  suivante: 

Chaque  Partie  nomme  deux 
Arbitres  et  ceux-ci  choisissent  en- 
semble un  Surarbitre. 


En  cas  de  partage  des  voix,  le 
choix  de  Surarbitre  est  confie  a 
une  Puissance  tierce,  designee 
de  commun  accord  par  les 
Parties. 

Si  I’accord  ne  s’etablit  pas  a ce 
sujet,  chaque  Partie  designe  une 
Puissance  differente  et  le  choix 


1907 

signation  en  commun  d’un  ou  de 
plusieurs  Membres. 

La  meme  personne  pent  etre 
designee  par  des  Puissances  dif- 
ferentes. 

Les  Membres  de  la  Cour  sont 
nommes  pour  un  terme  de  six 
ans.  Leur  mandat  pent  etre 
renouvele. 

En  cas  de  deces  ou  de  retraite 
d’un  Membre  de  la  Cour,  il  est 
pourvu  a son  remplacement  selon 
le  mode  fixe  pour  sa  nomina- 
tion, et  pour  une  nouvelle  periode 
de  six  ans. 


Article  45 

Lorsque  les  Puissances  contrac- 
tantes  veulent  s’adresser  a la 
Cour  permanente  pour  le  r^le- 
ment  d’un  differend  survenu  en- 
tre Elies,  le  choix  des  arbitres 
appeles  a former  le  Tribunal 
competent  pour  statuer  sur  ce 
differend,  doit  etre  fait  dans  la 
liste  generale  des  Membres  de  la 
Cour. 

A defaut  de  constitution  du 
Tribunal  arbitral  par  I’accord  .’es 
Parties,  il  est  procede  de 
maniere  suivante: 

Chaque  Partie  nomme  deux 
arbitres,  dont  un  seulement  peut 
etre  son  national  ou  choisi  parmi 
ceux  qui  ont  ete  designes  par 
Elle  cotnme  Membres  de  la  Cour 
permanente.  Ces  arbitres  choi- 
sissent ensemble  un  surarbitre. 

En  cas  de  partage  des  voix,  le 
choix  du  surarbitre  est  confie  a 
une  Puissance  tierce,  designee 
de  commun  accord  par  les 
Parties. 

Si  I’accord  ne  s’etablit  pas  a ce 
sujet,  chaque  Partie  designe  une 
Puissance  differente  et  le  choix 


PACIFIC  SETTLEMENT  OF  INTERNATIONAL  DISPUTES 


Ixiii 


1899 

or  more  members. 

The  same  person  can  be  selected 
by  different  Powers. 

The  members  of  the  Court  are 
appointed  for  a term  of  six  years. 
Their  appointments  can  be  re- 
newed. 

In  case  of  the  death  or  retire- 
ment of  a member  of  the  Court, 
his  place  shall  be  filled  in  accord- 
ance with  the  method  of  his 
appointment. 


Article  24 

When  the  signatory  Powers  de- 
sire to  have  recourse  to  the  Per- 
manent Court  for  the  settlement 
of  a difference  that  has  arisen  be- 
tween them,  the  arbitrators  called 
upon  to  form  the  competent 
tribunal  to  decide  this  difference 
must  be  chosen  from  the  general 
list  of  members  of  the  Court. 

Failing  the  direct  agreement  of 
the  parties  on  the  composition  of 
the  arbitration  tribunal,  the  fol- 
lowing course  shall  be  pursued : 

Each  party  appoints  two  arbi- 
trators, and  these  together  choose 
an  umpire. 


If  the  votes  are  equal,  the  choice 
of  the  umpire  is  intrusted  to  a 
third  Power,  selected  by  the  par- 
ties by  common  accord. 

If  an  agreement  is  not  arrived 
at  on  this  subject,  each  party  se- 
lects a different  Power,  and  the 


1907 

or  more  members. 

The  same  person  can  be  selected 
by  different  Powers. 

The  members  of  the  Court  are 
appointed  for  a term  of  six  years. 
These  appointments  are  renew- 
able. 

Should  a member  of  the  Court 
die  or  resign,  the  same  procedure 
is  followed  for  filling  the  vacancy 
as  was  followed  for  appointing 
him.  In  this  case  the  appoint- 
ment is  made  for  a fresh  period  of 
six  years. 

Article  45 

When  the  contracting  Powers 
wish  to  have  recourse  to  the  Per- 
manent Court  for  the  settlement 
of  a difference  which  has  arisen 
between  them,  the  arbitrators 
called  upon  to  form  the  tribunal 
with  jurisdiction  to  decide  this 
difference  must  be  chosen  from 
the  general  list  of  members  of  the 
Court. 

Failing  the  direct  agreement  of 
the  parties  on  the  composition  of 
the  arbitration  tribunal,  the  fol- 
lowing course  shall  be  pursued: 

Each  party  appoints  two  ar- 
bitrators, of  whom  one  only  can 
he  its  national  or  chosen  from 
among  the  persons  selected  by  it 
as  members  of  the  Permanent 
Court.  These  arbitrators  together 
choose  an  umpire. 

If  the  votes  are  equally  divided, 
the  choice  of  the  umpire  is  in- 
trusted to  a third  Power,  selected 
by  the  parties  by  common  accord. 

If  an  agreement  is  not  arrived 
at  on  this  subject  each  party  se- 
lects a different  Power,  and  the 


Ixiv 


THE  HAGUE  CONVENTIONS  OF  1899  AND  1907  FOR  THE 


1899 

du  Surarbitre  est  fait  de  concert 
par  les  Puissances  ainsi  designees. 


Le  Tribunal  etant  ainsi  com- 
pose, les  Parties  notifient  au  Bu- 
reau leur  decision  de  s’adresser  a 
la  Cour  et  les  noms  des  arbitres. 


Le  Tribunal  arbitral  se  reunit 
a la  date  fixee  par  les  Parties. 

Les  Membres  de  la  Cour,  dans 
I’exercice  de  leurs  functions  et  en 
dehors  de  leur  Pays,  jouissent  des 
privileges  et  immunites  diplo- 
matiques. 

Article  25 

Le  Tribunal  arbitral  siege  d’or- 
dinaire  a La  Haye.^ 

Le  siege  ne  pent,  sauf  le  cas  de 
force  majeure,  etre  change  par  le 
Tribunal  que  de  I’assentiment  des 
Parties. 

Article  26 

Le  Bureau  international  de  La 


1907 

du  surarbitre  est  fait  de  concert 
par  les  Puissances  ainsi  designees. 

Si,  dans  un  delai  de  deux  mois, 
ces  deux  Puissances  n’ont  pu 
tomber  d’accord,  chacune  d’Elles 
presente  deux  candidats  pris  sur 
la  liste  des  Membres  de  la  Cour 
permanente,  en  dehors  des 
Membres  designes  par  les  Parties 
et  n’etant  les  nationaux  d’au- 
cune  d’Elles.  Le  sort  determine 
lequel  des  candidats  ainsi 
presentes  sera  le  surarbitre. 

Article  46 

Dhs  que  le  Tribunal  est  com- 
pose, les  Parties  notifient  au 
Bureau  leur  decision  de  s’ad- 
resser a la  Cour,  le  texte  de  leur 
compromis,  et  les  noms  des 
arbitres. 

Le  Bureau  communique  sans 
delai  d chaque  arbitre  le  com- 
promis et  les  noms  des  autres 
Membres  du  Tribunal. 

Le  Tribunal  se  reunit  a la  date 
fixee  par  les  Parties.  Le  Bureau 
pourvoit  a.  son  installation. 

I.es  Membres  du  Tribunal, 
dans  I’exercice  de  leurs  functions 
et  en  dehors  de  leur  pays,  jouis- 
sent des  privileges  et  immunites 
diplomatiques. 


Article  47 

Le  Bureau  est  autorise  a 


iSee  footnote  on  opposite  page. 


PACIFIC  SETTLEMENT  OF  INTERNATIONAL  DISPUTES 


Ixv 


1899 

choice  of  the  umpire  is  made  in 
concert  by  the  Powers  thus  se- 
lected. 


The  tribunal  being  thus  com- 
posed, the  parties  notify  to  the 
Bureau  their  determination  to 
have  recourse  to  the  Court  and 
the  names  of  the  arbitrators. 


The  tribunal  of  arbitration  as- 
sembles on  the  date  fixed  by  the 
parties. 

The  members  of  the  Court,  in 
the  discharge  of  their  duties  and 
out  of  their  own  country,  enjoy 
diplomatic  privileges  and  immu- 
nities. 

Article  25 

The  tribunal  of  arbitration  has 
its  ordinary  seat  at  The  Hague.^ 

Except  in  cases  of  necessity, 
the  place  of  session  can  only  be 
altered  by  the  tribunal  with  the 
assent  of  the  parties. 

Article  26 

The  International  Bureau  at 


1907 

choice  of  the  umpire  is  made  in 
concert  by  the  Powers  thus  se- 
lected. 

If,  within  two  months’  time, 
these  two  Powers  can  not  come 
to  an  agreement,  each  of  them 
presents  two  candidates  taken 
from  the  list  of  members  of  the 
Permanent  Court,  exclusive  of 
the  members  selected  by  the  par- 
ties and  not  being  nationals  of 
either  of  them.  Drawing  lots 
determines  which  of  the  candi- 
dates thus  presented  shall  be 
umpire. 

Article  46 

As  soon  as  the  tribunal  is  com- 
posed, the  parties  notify  to  the 
Bureau  their  determination  to 
have  recourse  to  the  Court,  the 
text  of  their  compromis,  and  the 
names  of  the  arbitrators. 

The  Bureau  communicates  with- 
out delay  to  each  arbitrator  the 
compromis,  and  the  names  of  the 
other  members  of  the  tribunal. 

The  tribunal  assembles  at  the 
date  fixed  by  the  parties.  The 
Bureau  makes  the  necessary  ar- 
rangements for  the  meeting. 

The  members  of  the  tribunal, 
in  the  exercise  of  their  duties  and 
out  of  their  own  country,  enjoy 
diplomatic  privileges  and  immu- 
nities. 


Article  47 

The  Bureau  is  authorized  to 


^Cf.  Article  43,  paragraph  1,  of  the  1907  Convention. 


Ixvi 


THE  HAGUE  CONVENTIONS  OF  1899  AND  1907  FOR  THE 


1899 

Haye  est  autorise  a mettre  ses 
locaux  et  son  organisation  a la 
disposition  des  Puissances  signa- 
taires  pour  le  fonctionnement  de 
toute  juridiction  speciale  d’arbi- 
trage. 

La  juridiction  de  la  Cour  per- 
manente  pent  etre  etendue,  dans 
les  conditions  prescrites  par  les 
Reglements,  aux  litiges  existant 
entre  des  Puissances  non  signa- 
taires  ou  entre  des  Puissances 
signataires  et  des  Puissances  non 
signataires,  si  les  Parties  sont 
convenues  de  recourir  a cette  juri- 
diction. 

Article  27 

Les  Puissances  signataires  con- 
siderent  comme  un  devoir,  dans 
le  cas  oil  un  conflit  aigu  menace- 
rait  d’eclater  entre  deux  ou  plu- 
sieurs  d’entre  Elies,  de  rappeler  a 
celles-ci  que  la  Cour  permanente 
leur  est  ouverte. 

En  consequence,  Elies  decla- 
rent  que  le  fait  de  rappeler  aux 
Parties  en  conflit  les  dispositions 
de  la  presente  Convention,  et  le 
conseil  donne,  dans  I’interet  su- 
perieur  de  la  paix,  de  s’adresser  a 
la  Cour  permanente,  ne  peuvent 
etre  consideres  que  comme  actes 
de  Bons  Offices. 


1907 

mettre  ses  locaux  et  son  organisa- 
tion a la  disposition  des  Puis- 
sances contractantes  pour  le 
fonctionnement  de  toute  juri- 
diction speciale  d’arbitrage. 

La  juridiction  de  la  Cour  per- 
manente peut  etre  etendue,  dans 
les  conditions  prescrites  par  les 
reglements,  aux  litiges  existant 
entre  des  Puissances  non  con- 
tractantes ou  entre  des  Puis- 
sances contractantes  et  des  Puis- 
sances non  contractantes,  si  les 
Parties  sont  convenues  de  re- 
courir a cette  juridiction. 

Article  48 

Les  Puissances  contractantes 
considerent  comme  un  devoir, 
dans  les  cas  ou  un  conflit  aigu 
menacerait  d’eclater  entre  deux 
ou  plusieurs  d’entre  Elies,  de  rap- 
peler a celles-ci  que  la  Cour  per- 
manente leur  est  ouverte. 

En  consequence,  Elies  decla- 
rent  que  le  fait  de  rappeler  aux 
Parties  en  conflit  les  dispositions 
de  la  presente  Convention,  et  le 
conseil  donne,  dans  I’interet  su- 
perieur  de  la  paix,  de  s’adresser  a 
la  Cour  permanente,  ne  peuvent 
etre  consideres  que  comme  actes 
de  bons  offices. 

En  cas  de  conflit  entre  deux 
Puissances,  Vune  d’Elles  pourra 
toujours  adresser  au  Bureau  In- 
ternational une  note  contenant  sa 
declaration  qu’Elle  serait  dis- 
posee  a soumettre  le  differend  d 
un  arbitrage. 

Le  Bureau  devra  porter  aus- 
sitot  la  declaration  d la  connais- 
sance  de  I’autre  Puissance. 


PACIFIC  SETTLEMENT  OF  INTERNATIONAL  DISPUTES 


Ixvii 


1899 

The  Hague  is  authorized  to  place 
its  premises  and  its  staff  at  the 
disposal  of  the  signatory  Powers 
for  the  operations  of  any  special 
board  of  arbitration. 

The  jurisdiction  of  the  Perma- 
nent Court,  may,  within  the  con- 
ditions laid  down  in  the  regula- 
tions, be  extended  to  disputes 
between  non-signatory  Powers, 
or  between  signatory  Powers  and 
non-signatory  Powers,  if  the  par- 
ties are  agreed  on  recourse  to 
this  tribunal. 


Article  27 

The  signatory  Powers  consider 
it  their  duty,  if  a serious  dispute 
threatens  to  break  out  between 
two  or  more  of  them,  to  remind 
these  latter  that  the  Permanent 
Court  is  open  to  them. 

Consequently,  they  declare  that 
the  fact  of  reminding  the  con- 
flicting parties  of  the  provisions 
of  the  present  Convention,  and 
the  advice  given  to  them,  in  the 
highest  interests  of  peace,  to 
have  recourse  to  the  Permanent 
Court,  can  only  be  regarded  as 
friendly  actions. 


1907 

place  its  offices  and  staff  at  the 
disposal  of  the  contracting  Pow- 
ers for  the  use  of  any  special 
board  of  arbitration. 


The  jurisdiction  of  the  Perma- 
nent Court  may,  within  the  con- 
ditions laid  down  in  the  regula- 
tions, be  extended  to  disputes 
between  non-contracting  Powers 
or  between  contracting  Powers 
and  non-contracting  Powers,  if 
the  parties  are  agreed  on  recourse 
to  this  tribunal. 


Article  48^ 

The  contracting  Powers  con- 
sider it  their  duty,  if  a serious 
dispute  threatens  to  break  out 
between  two  or  more  of  them,  to 
remind  these  latter  that  the  Per- 
manent Court  is  open  to  them. 

Consequently,  they  declare  that 
the  fact  of  reminding  the  parties 
at  variance  of  the  previsions  of 
the  present  Convention,  and  the 
advice  given  to  them,  in  the  high- 
est interests  of  peace,  to  have  re- 
course to  the  Permanent  Court, 
can  only  be  regarded  as  friendly 
actions. 

In  case  of  dispute  between  two 
Powers,  one  of  them  can  always 
address  to  the  International  Bu- 
reau a note  containing  a declara- 
tion that  it  would  he  ready  to  sub- 
mit the  dispute  to  arbitration. 

The  Bureau  must  at  once  in- 
form the  other  Power  of  the  dec- 
laration. 


^See  the  reservation  of  the  United  States  on  the  subject  of  this  article,  post, 
p.  cvi. 


Ixviii 


THE  HAGUE  CONVENTIONS  OF  1899  AND  1907  FOR  THE 


1899 

Article  28 

Un  Conseil  administratif  per- 
manent, compose  des  represen- 
tants  diplomatiques  des  Puis- 
sances signataires  accredites  a La 
Haye  et  du  Ministre  des  Affaires 
fitrangeres  des  Pays-Bas  qui 
remplira  les  fonctions  de  Presi- 
dent, sera  constitue  dans  cette 
ville  le  plus  tot  possible  apres  la 
ratification  du  present  Acte  par 
neuf  Puissances  au  moins. 

Ce  Conseil  sera  charge  d’etab- 
lir  et  d’organiser  le  Bureau  in- 
ternational, lequel  demeurera 
sous  sa  direction  et  sous  son 
controle. 

II  notifiera  aux  Puissances  la 
constitution  de  la  Cour  et  pour- 
voira  a I’installation  de  celle-ci. 

II  arretera  son  reglement 
d’ordre  ainsi  que  tons  autres 
reglements  necessaires. 

II  decidera  toutes  les  questions 
administratives  qui  pourraient 
surgir  touchant  le  fonctionne- 
ment  de  la  Cour. 

II  aura  tout  pouvoir  quant  a la 
nomination,  la  suspension  ou  la 
revocation  des  fonctionnaires  et 
employes  du  Bureau. 

II  fixera  les  traitements  et  sa- 
laires  et  controlera  la  depense 
generale. 

La  presence  de  cinq  membres 
dans  les  reunions  dument  con- 
voquees  suffit  pour  permettre  au 
Conseil  de  deliberer  valable- 
ment.  Les  decisions  sont  prises 
a la  majorite  des  voix. 

Le  Conseil  communique  sans 
delai  aux  Puissances  signataires 
les  reglements  adoptes  par  lui. 
II  leur  adresse  chaque  annee  un 
rapport  sur  les  travaux  de  la 
Cour,  sur  le  fonctionnement  des 


1907 

Article  49 

Le  Conseil  administratif  per- 
manent, compose  des  Repre- 
sentants  diplomatiques  des  Puis- 
sances contractantes  accredites 
a La  Haye  et  du  Ministre  des 
Affaires  Btrangeres  des  Pays-Bas, 
qui  remplit  les  fonctions  de 
President,  a la  direction  et  le 
controle  du  Bureau  International. 


Le  Conseil  arrete  son  regle- 
ment d’ordre  ainsi  que  tous 
autres  reglements  necessaires. 

II  decide  toutes  les  questions 
administratives  qui  pourraient 
surgir  touchant  le  fonctionne- 
ment de  la  Cour. 

II  a tout  pouvoir  quant  a la 
nomination,  la  suspension  ou  la 
revocation  des  fonctionnaires  et 
employes  du  Bureau. 

II  fixe  les  traitements  et  sa- 
laires,  et  controle  la  depense  ge- 
nerale. 

La  presence  de  neuf  membres 
dans  les  reunions  dument  con- 
voquees  suffit  pour  permettre  au 
Conseil  de  deliberer  valable- 
ment.  Les  decisions  sont  prises 
a la  majorite  des  voix. 

Le  Conseil  communique  sans 
delai  aux  Puissances  contrac- 
tantes les  reglements  adoptes  par 
lui.  II  Leur  presente  chaque 
annee  un  rapport  sur  les  travaux 
de  la  Cour,  sur  le  fonctionnement 


PACIFIC  SETTLEMENT  OF  INTERNATIONAL  DISPUTES 


Ixix 


1899 

Article  28 

A Permanent  Administrative 
Council,  composed  of  the  diplo- 
matic representatives  of  the  sig- 
natory Powers  accredited  to  The 
Hague  and  of  the  Netherland 
Minister  for  Foreign  Affairs,  who 
will  act  as  president,  shall  be 
instituted  in  this  town  as  soon  as 
possible  after  the  ratification  of 
the  present  Act  by  at  least  nine 
Powers. 

This  Council  will  be  charged 
with  the  establishment  and  organ- 
ization of  the  International  Bu- 
reau, which  will  be  under  its  di- 
rection and  control. 

It  will  notify  to  the  Powers  the 
constitution  of  the  Court  and 
will  provide  for  its  installation. 

It  will  settle  its  rules  of  pro- 
cedure and  all  other  necessary 
regulations. 

It  will  decide  all  questions  of 
administration  which  may  arise 
with  regard  to  the  operations  of 
the  Court. 

It  will  have  entire  control  over 
the  appointment,  suspension  or 
dismissal  of  the  officials  and  em- 
ployes of  the  Bureau. 

It  will  fix  the  payments  and 
salaries,  and  control  the  general 
expenditure. 

At  meetings  duly  summoned 
the  presence  of  five  members  is 
sufficient  to  render  valid  the  dis- 
cussions of  the  Council.  The 
decisions  are  taken  by  a majority 
of  votes. 

The  Council  communicates  to 
the  signatory  Powers  without 
delay  the  regulations  adopted 
by  it.  It  addresses  to  them  an 
annual  report  on  the  labors  of 
the  Court,  the  working  of  the 


1907 

Article  49 

The  Permanent  Administrative 
Council,  composed  of  the  diplo- 
matic representatives  of  the  con- 
tracting Powers  accredited  to  The 
Hague  and  of  the  Netherland 
Minister  for  Foreign  Affairs,  who 
acts  as  president,  is  charged 
with  the  direction  and  control  of 
the  International  Bureau. 


The  Council  settles  its  rules  of 
procedure  and  all  other  necessary 
regulations. 

It  decides  all  questions  of  ad- 
ministration which  may  arise  with 
regard  to  the  operations  of  the 
Court. 

It  has  entire  control  over  the 
appointment,  suspension,  or  dis- 
missal of  the  officials  and  em- 
ployes of  the  Bureau. 

It  fixes  the  payments  and  sala- 
ries, and  controls  the  general  ex- 
penditure. 

At  meetings  duly  summoned 
the  presence  of  nine  members  is 
sufficient  to  render  valid  the  dis- 
cussions of  the  Council.  The  de- 
cisions are  taken  by  a majority  of 
votes. 

The  Council  communicates  to 
the  contracting  Powers  without 
delay  the  regulations  adopted  by 
it.  It  presents  to  them  an  an- 
nual report  on  the  labors  of  the 
Court,  the  working  of  the  admin- 


Ixx 


THE  HAGUE  CONVENTIONS  OF  1899  AND  1907  FOR  THE 


1899 

services  administratifs  et  sur  les 
depenses. 


Article  29 

Les  frais  du  Bureau  seront  sup- 
portes  par  les  Puissances  signa- 
taires  dans  la  proportion  etablie 
pour  le  Bureau  international  de 
I’Union  postale  universelle. 


Chapitre  III. — De  la  Procedure 
arbitrate 

Article  30 

En  vue  de  favoriser  le  deve- 
loppement  de  I’arbitrage,  les  Puis- 
sances signataires  ont  arrete  les 
regies  suivantes  qui  seront  appli- 
cables  a la  procedure  arbitrale,  en 
tant  que  les  Parties  ne  sont  pas 
convenues  d’autres  regies. 

Article  31 

Les  Puissances  qui  recourent  a 
I’arbitrage  signent  un  Acte  spe- 
cial (compromis)  dans  lequel  sont 
nettement  determines  I’objet  du 
litige  ainsi  que  I’etendue  des 
pouvoirs  des  arbitres.  Cet  Acte 
implique  I’engagement  des  Par- 
ties de  se  soumettre  de  bonne  foi 
a la  sentence  arbitrale.^ 


1907 

des  services  administratifs  et  sur 
les  depenses.  Le  rapport  con- 
tient  egalement  un  resume  du 
contenu  essentiel  des  documents 
communiques  au  Bureau  par 
les  Puissances  en  vertu  de 
Varticle  4^  cdineas  j et  4. 

Article  50 

Les  frais  du  Bureau  seront 
supportes  par  les  Puissances  con- 
tractantes  dans  la  proportion 
etablie  pour  le  Bureau  interna- 
tional de  rUnion  postale  uni- 
verselle. 

Les  frais  & la  charge  des  Puis- 
sances adherentes  seront  comptes 
a partir  du  jour  oil  leur  adhesion 
produit  ses  effets. 

Chapitre  III. — De  la  Procedure 
arbitrale 

Article  51 

En  vue  de  favoriser  le  deve- 
loppement  de  I’arbitrage,  les  Puis- 
sances contractantes  ont  arrete 
les  regies  suivantes  qui  sont  ap- 
plicables  a la  procedure  arbitrale, 
en  tant  que  les  Parties  ne  sont  pas 
convenues  d’autres  regies. 

^\rticle  52 

Les  Puissances  qui  recourent 
a I’arbitrage  signent  un  com- 
promis dans  lequel  sont  deter- 
mines I’objet  du  litige,  le  delai 
de  nomination  des  arbitres,  la 
forme,  I’ordre  et  les  delais  dans 
lesquels  la  communication  visee 
par  Varticle  devra  etre  faite, 
et  le  montant  de  la  somme  que 
chaque  Partie  aura  a deposer 
a litre  d’avance  pour  les  frais. 

Le  compromis  determine  egale- 


^See  footnote  on  opposite  page. 


PACIFIC  SETTLEMENT  OF  INTERNATIONAL  DISPUTES 


Ixxi 


1899 

administration,  and  the  expendi- 
ture. 


Article  29 

The  expenses  of  the  Bureau 
shall  be  borne  by  the  signatory 
Powers  in  the  proportion  fixed 
for  the  International  Bureau  of 
the  Universal  Postal  Union. 


Chapter  III. — On  Arbitral  Pro- 
cedure 

Article  30 

With  a view  to  encourage  the 
development  of  arbitration,  the 
signatory  Powers  have  agreed  on 
the  following  rules  which  shall 
be  applicable  to  arbitral  proce- 
dure, unless  other  rules  have  been 
agreed  on  by  the  parties. 

Article  31 

The  Powers  who  have  recourse 
to  arbitration  sign  a special  act 
(compromis),  in  which  the  sub- 
ject of  the  diflference  is  clearly 
defined,  as  well  as  the  extent  of 
the  arbitrators’  powers.  This  act 
implies  the  undertaking  of  the 
parties  to  submit  loyally  to  the 
award.^ 


1907 

istration,  and  the  expenditure. 
The  report  likewise  contains  a 
resume  of  what  is  important  in 
the  documents  communicated  to 
the  Bureau  by  the  Powers  in  vir- 
tue of  Article  4^,  paragraphs  j 
and  4. 

Article  50 

The  expenses  of  the  Bureau 
shall  be  borne  by  the  contracting 
Powers  in  the  proportion  fixed  for 
the  International  Bureau  of  the 
Universal  Postal  Union. 

The  expenses  to  be  charged  to 
the  adhering  Powers  shall  be  reck- 
oned from  the  date  on  which  their 
adhesion  comes  into  force. 

Chapter  III. — Arbitration 
Procedure 

Article  51 

With  a view  to  encouraging  the 
development  of  arbitration,  the 
contracting  Powers  have  agreed 
on  the  following  rules,  which  are 
applicable  to  arbitration  proce- 
dure, unless  other  rules  have  been 
agreed  on  by  the  parties. 

Article  52 

The  Powers  which  have  re- 
course to  arbitration  sign  a com- 
promis, in  which  the  subject  of 
the  dispute  is  clearly  defined,  the 
time  allowed  for  appointing  arbi- 
trators, the  form,  order,  and  time 
in  which  the  communication  re- 
ferred to  in  Article  6j  must  be 
made,  and  the  amount  of  the  sum 
which  each  party  must  deposit  in 
advance  to  defray  the  expenses. 

The  compromis  likewise  de- 


iCf.  Article  37,  paragraph  2,  of  the  1907  Convention. 


Ixxii 


THE  HAGUE  CONVENTIONS  OF  1899  AND  1907  FOR  THE 


1899 


1907 

ment,  s’il  y a lieu,  le  mode  de 
nomination  des  arbitres,  tons 
pouvoirs  speciaux  eventuels  du 
Tribunal,  son  siege,  la  langue 
dont  il  fera  usage  et  celles  dont 
I’emploi  sera  autorise  devant  lui, 
et  generalement  toutes  les  con- 
ditions dont  les  Parties  sont  con- 
venues. 


Article  53 

La  Cour  permanente  est  com- 
petente  pour  V etablissement  du 
compromis,  si  les  Parties  sont 
d'accord  pour  s’en  remettre  d 
elle. 

Elle  est  egalement  competente, 
meme  si  la  demande  est  faite 
seulement  par  I’une  des  Parties, 
apres  qu’un  accord  par  la  voie 
diplomatique  a etc  vainement 
essaye,  quand  il  s’agit: 

1°.  d’un  different  rentrant  dans 
un  Traite  d’ arbitrage  general  con- 
clu  ou  renouvele  aprks  la  mise  en 
vigueur  de  cette  Convention  et  qui 
prevoit  pour  chaque  differend 
un  compromis  et  n’exclut  pour 
r etablissement  de  ce  dernier  ni 
explicitement  ni  implicitement  la 
competence  de  la  Cour.  Toute- 
fois,  le  recours  a la  Cour  n’a  pas 
lieu  si  I’autre  Partie  declare  qu’d 
son  avis  le  differend  n’appartient 
pas  a la  categorie  des  differends 
a soumettre  a un  arbitrage  obli- 
gatoire,  a moins  que  le  Traite 
d’ arbitrage  ne  conjure  au  Tri- 
bunal arbitral  le  pouvoir  de 
decider  cette  question  prealable; 

2°.  d'un  differend  provenant  de 
dettes  contractuelles  reclamees  d 
line  Puissance  par  une  autre 
Puissance  comme  dues  d ses 
nationaux,  et  pour  la  solution 
duquel  V off  re  d’ arbitrage  a iti 


PACIFIC  SETTLEMENT  OF  INTERNATIONAL  DISPUTES 


Ixxiii 


1899 


1907 

fines,  if  there  is  occasion,  the  man- 
ner of  appointing  arbitrators,  any 
special  powers  which  may  eventu- 
ally belong  to  the  tribunal,  where 
it  shall  meet,  the  language  it  shall 
use,  and  the  languages  the  em- 
ployment of  which  shall  be  author- 
ized before  it,  and,  generally 
speaking,  all  the  conditions  on 
which  the  parties  are  agreed. 

Article  53^ 

The  Permanent  Court  is  compe- 
tent to  settle  the  compromis,  if 
the  parties  are  agreed  to  have  re- 
course to  it  for  the  purpose. 

It  is  similarly  competent,  even 
if  the  request  is  only  made  by  one 
of  the  parties,  when  all  attempts 
to  reach  an  understanding  through 
the  diplomatic  channel  have 
failed,  in  the  case  of — 

1.  A dispute  covered  by  a gen- 
eral treaty  of  arbitration  con- 
cluded or  renewed  after  the  pres- 
ent Convention  has  come  into 
force,  and  providing  for  a com- 
promis in  all  disputes  and  not 
either  explicitly  or  implicitly  ex- 
cluding the  settlement  of  the 
compromis  from  the  competence 
of  the  Court.  Recourse  can  not, 
however,  be  had  to  the  Court  if 
the  other  party  declares  that  in  its 
opinion  the  dispute  does  not  be- 
long to  the  category  of  disputes 
which  can  be  submitted  to  compul- 
sory arbitration,  unless  the  treaty 
of  arbitration  confers  upon  the  ar- 
bitration tribunal  the  power  of  de- 
ciding this  preliminary  question. 

2.  A dispute  arising  from  con- 
tract debts  claimed  from  one 
Power  by  another  Power  as  due  to 
its  nationals,  and  for  the  settle- 
ment of  which  the  offer  of  arbi- 


iSee  the  reservations  of  this  article,  post,  pp.  cv.  et  seq. 


Ixxiv 


THE  HAGUE  CONVENTIONS  OF  1899  AND  1907  FOR  THE 


1899 


Article  32 

Les  fonctions  arbitrales  peu- 
vent  etre  conferees  a un  arbitre 
unique  ou  a plusieurs  arbitres 
designes  par  les  Parties  a leur 
gre,  OU  choisis  par  Elies  parmi 
les  membres  de  la  Cour  per- 
manente  d’arbitrage  etablie  par 
le  present  Acte. 

A defaut  de  constitution  du 
Tribunal  par  I’accord  immediat 
des  Parties,  il  est  procede  de  la 
maniere  suivante : 

Chaque  Partie  nomme  deux 
arbitres  et  ceux-ci  choisissent  en- 
semble un  surarbitre. 

En  cas  de  partage  des  voix,  le 
choix  de  surarbitre  est  confie  a 
une  Puissance  tierce,  designee  de 
commun  accord  par  les  Parties. 

Si  I’accord  ne  s’etablit  pas  a ce 
sujet,  chaque  Partie  designe  une 
Puissance  differente  et  le  choix 
du  surarbitre  est  fait  de  concert 
par  les  Puissances  ainsi  de- 
signees. 


1907 

acceptee.  Cette  disposition  n’est 
pas  applicable  si  ^acceptation  a 
ete  subordonnee  a la  condition 
que  le  compromis  soit  etabli 
selon  un  autre  mode. 

Article  54 

Dans  les  cas  premis  par  Particle 
precedent,  le  compromis  sera 
etabli  par  une  commission  com- 
posee  de  cinq  membres  designes 
de  la  maniere  prevue  a Particle 
45  aline  as  3 a 6. 

Le  cinquieme  membre  est  de 
droit  President  de  la  commission. 

Article  55 

Les  fonctions  arbitrales  peu- 
vent  etre  conferees  a un  arbitre 
unique  ou  a plusieurs  arbitres 
designes  par  les  Parties  a leur 
gre,  ou  choisis  par  Elies  parmi 
les  Membres  de  la  Cour  per- 
manente  d’arbitrage  etablie  par 
la  presente  Convention. 

A defaut  de  constitution  du 
Tribunal  par  I’accord  des  Par- 
ties, il  est  procede  de  la  maniere 
indiqnee  a Particle  45  cdineas 
3 a 6. 


PACIFIC  SETTLEMENT  OF  INTERNATIONAL  DISPUTES 


Ixxv 


1899 


Article  32 

The  duties  of  arbitrator  may 
be  conferred  on  one  arbitrator 
alone  or  on  several  arbitrators 
selected  by  the  parties  as  they 
please,  or  chosen  by  them  from 
the  members  of  the  Permanent 
Court  of  Arbitration  established 
by  the  present  Act. 

Failing  the  constitution  of  the 
tribunal  by  direct  agreement  be- 
tween the  parties,  the  following 
course  is  pursued: 

Each  party  appoints  two  arbi- 
trators, and  these  latter  together 
choose  an  umpire. 

In  case  of  equal  voting,  the 
choice  of  the  umpire  is  intrusted 
to  a third  Power,  selected  by  the 
parties  by  common  accord. 

If  no  agreement  is  arrived  at 
on  this  subject,  each  party  selects 
a different  Power,  and  the  choice 
of  the  umpire  is  made  in  concert 
by  the  Powers  thus  selected. 


1907 

tration  has  been  accepted.  This 
arrangement  is  not  applicable  if 
acceptance  is  subject  to  the  condi- 
tion that  the  compromis  should 
be  settled  in  some  other  way. 

Article  54^ 

In  the  cases  contemplated  in 
the  preceding  article,  the  com- 
promis shall  be  settled  by  a com- 
mission consisting  of  five  mem- 
bers selected  in  the  manner  ar- 
ranged for  in  Article  45,  para- 
graphs 5 to  6. 

The  fifth  member  is  president 
of  the  commission  ex  officio. 

Article  55 

The  duties  of  arbitrator  may  be 
conferred  on  one  arbitrator  alone 
or  on  several  arbitrators  selected 
by  the  parties  as  they  please,  or 
chosen  by  them  from  the  mem- 
bers of  the  Permanent  Court  of 
Arbitration  established  by  the 
present  Convention. 

Failing  the  constitution  of  the 
tribunal  by  direct  agreement  be- 
tween the  parties,  the  course  re- 
ferred to  in  Article  45,  paragraphs 
y to  6 is  pursued. 


^ Japan  made  reservation  of  Article  54. 


Ixxvi  THE  HAGUE  CONVENTIONS  OF  1899  AND  1907  FOR  THE 


1899 

Article  33 

Lorsqu’un  Souverain  ou  un 
Chef  d’fitat  est  choisi  pour  ar- 
bitre,  la  procedure  arbitrate  est 
reglee  par  Lui. 

Article  34 

Le  surarbitre  est  de  droit  Pre- 
sident du  Tribunal. 

Lorsque  le  Tribunal  ne  com- 
prend  pas  de  surarbitre,  il  nomme 
lui-meme  son  president. 


Article  35 

En  cas  de  deces,  de  demission 
ou  d’empechement,  pour  quelque 
cause  que  ce  soit,  de  I’un  des  ar- 
bitres,  il  est  pourvu  a son  rem- 
placement  selon  le  mode  fixe  pour 
sa  nomination. 

Article  36 

Le  siege  du  Tribunal  est 
designe  par  les  Parties.  A de- 
faut  de  cette  designation,  le 
Tribunal  siege  a La  Haye. 


Le  siege  ainsi  fixe  ne  peut, 
sauf  le  cas  de  force  majeure,  etre 
change  par  le  Tribunal  que  de 
I’assentiment  des  Parties. 


1907 

Article  56 

Lorsqu’un  Souverain  ou  un 
Chef  d’Etat  est  choisi  pour  ar- 
bitre,  la  procedure  arbitrate  est 
reglee  par  Lui. 

Article  57 

Le  surarbitre  est  de  droit  Pre- 
sident du  Tribunal. 

Lorsque  le  Tribunal  ne  com- 
prend  pas  de  surarbitre,  il  nomme 
lui-meme  son  President. 

Article  58 

En  cas  d’ etablissement  du  com- 
promis  par  une  commission,  telle 
qu'elle  est  visee  a I’article  54, 
et  sauf  stipulation  contraire,  la 
commission  elle  nteme  formera 
le  Tribunal  d’ arbitrage. 

Article  59 

En  cas  de  deces,  de  demission 
ou  d’empechement,  pour  quelque 
cause  que  ce  soit,  de  I’un  des 
arbitres,  il  est  pourvu  a son  rem- 
placement  selon  le  mode  fixe 
pour  sa  nomination. 

Article  60 

A defaut  de  designation  par 
les  Parties,  le  Tribunal  siege  a 
La  Haye. 

Le  Tribunal  ne  peut  sieger  sur 
le  territoire  dUine  tierce  Puis- 
sance qu’avec  I’assentiment  de 
celle-ci. 

Le  siege  une  fois  fixe  ne  peut 
etre  change  par  le  Tribunal 
cpa’avec  I’assentiment  des  Parties. 

Article  61 

Si  le  conipromis  n’a  pas  deter- 


PACIFIC  SETTLEMENT  OF  INTERNATIONAL  DISPUTES 


Ixxvii 


1899 

Article  33 

When  a sovereign  or  the  chief 
of  a State  is  chosen  as  arbitra- 
tor, the  arbitral  procedure  is  set- 
tled by  him. 

Article  34 

The  umpire  is  by  right  presi- 
dent of  the  tribunal. 

When  the  tribunal  does  not 
include  an  umpire,  it  appoints 
its  own  president. 


Article  35 

In  case  of  the  death,  retire- 
ment, or  disability  from  any  cause 
of  one  of  the  arbitrators,  his 
place  shall  be  filled  in  accordance 
with  the  method  of  his  appoint- 
ment. 

Article  36 

The  tribunal’s  place  of  session 
is  selected  by  the  parties.  Fail- 
ing this  selection  the  tribunal 
sits  at  The  Hague. 


The  place  thus  fixed  can  not, 
except  in  case  of  necessity,  be 
changed  by  the  tribunal  without 
the  assent  of  the  parties. 


1907 

Article  56 

When  a sovereign  or  the  chief 
of  a State  is  chosen  as  arbitrator, 
the  arbitration  procedure  is  set- 
tled by  him. 

Article  57 

The  umpire  is  president  of  the 
tribunal  ex  officio. 

When  the  tribunal  does  not  in- 
clude an  umpire,  it  appoints  its 
own  president. 

Article  58 

When  the  compromis  is  set- 
tled by  a commission,  as  contem- 
plated in  Article  §4,  and  in  the  ab- 
sence of  an  agreement  to  the  con- 
trary, the  commission  itself  shall 
form  the  arbitration  tribunal. 

Article  59 

Should  one  of  the  arbitrators 
either  die,  retire,  or  be  unable  for 
any  reason  whatever  to  discharge 
his  functions,  the  same  procedure 
is  followed  for  filling  the  vacancy 
as  was  followed  for  appointing 
him. 

Article  60 

The  tribunal  sits  at  The  Hague 
unless  some  other  place  is  se- 
lected by  the  parties. 

The  tribunal  can  only  sit  in  the 
territory  of  a third  Power  with 
the  latter’s  consent. 

The  place  of  meeting  once  fixed 
can  not  be  altered  by  the  tribunal, 
except  with  the  consent  of  the 
parties. 

Article  61 

If  the  question  as  to  what  Ian- 


Ixxviii  THE  HAGUE  CONVENTIONS  OF  1899  AND  1907  FOR  THE 


1899 


Article  37 

Les  Parties  ont  le  droit  de  nom- 
mer  aupres  du  Tribunal  des  De- 
legues  ou  agents  speciaux,  avec 
la  mission  de  servir  d’intermedi- 
aires  entre  Elies  et  le  Tribunal. 

Elies  sont  en  outre  autorisees  a 
charger  de  la  defense  de  leurs 
d"oits  et  interets  devant  le  Tri- 
bunal, des  conseils  ou  avocats 
nommes  par  Elies  a cet  effet. 


Article  38 

Le  Tribunal  decide  du  choix 
des  langues  dont  il  fera  usage  et 
dont  I’emploi  sera  autorise  de- 
vant lui.^ 

Article  39 

La  procedure  arbitrale  com- 
prend  en  regie  generale  deux 
phases  distinctes : I’instruction  et 
les  debats. 

L’instruction  consiste  dans  la 
communication  faite  par  les 
Agents  respectifs,  aux  membres 
du  Tribunal  et  a la  Partie  ad- 
verse, de  tous  actes  imprimes 
ou  ecrits  et  de  tous  documents 
contenant  les  moyens  invoques 
dans  la  cause.  Cette  communi 
cation  aura  lieu  dans  la  forme 


1907 

mine  les  langues  a employer,  il  en 
est  decide  par  le  Tribunal.^ 


Article  62 

Les  Parties  ont  le  droit  de  nom- 
mer  aupres  du  Tribunal  des 
agents  speciaux,  avec  la  mission 
de  servir  d'intermediaires  entre 
Elies  et  le  Tribunal. 

Elies  sont  en  outre  autorisees  a 
charger  de  la  defense  de  leurs 
droits  et  interets  devant  le  Tri- 
bunal, des  conseils  ou  avocats 
nommes  par  Elies  a cet  effet. 

Les  Membres  de  la  Cour  per- 
manente  ne  peuvent  exercer  les 
fonctions  d’ agents,  conseils  ou 
avocats,  qu’en  faveur  de  la  Puis- 
sance qui  les  a nommes  Membres 
de  la  Cour. 


Article  63 

La  procedure  arbitrale  com- 
prend  en  r^le  generale  deux 
phases  distinctes : I’instruction 

ecrite  et  les  debats. 

L’instruction  ecrite  consiste 
dans  la  communication  faite  par 
les  agents  respectifs,  aux  mem- 
bres du  Tribunal  et  a la  Partie 
adverse,  des  memoires,  des  con- 
tre-m^moires,  et,  au  besom,  des 
repliques;  les  Parties  y joignent 
toutes  pieces  et  documents  in- 
voques dans  la  cause.  Cette 


iSee  footnote  1,  opposite  page. 
^See  footnote  2,  opposite  page. 


PACIFIC  SETTLEMENT  OF  INTERNATIONAL  DISPUTES 


Ixxix 


1899 


Article  37 

The  parties  have  the  right  to 
appoint  delegates  or  special  agents 
to  attend  the  tribunal,  for  the  pur- 
pose of  serving  as  intermediaries 
between  them  and  the  tribunal. 

They  are  further  authorized  to 
retain,  for  the  defense  of  their 
rights  and  interests  before  the 
tribunal,  counsel  or  advocates  ap- 
pointed by  them  for  this  purpose. 


Article  38 

The  tribunal  decides  on  the 
choice  of  languages  to  be  used 
by  itself,  and  to  be  authorized 
for  use  before  it.* 

Article  39 

As  a general  rule  the  arbitral 
procedure  comprises  two  distinct 
phases : pleadings  and  oral  dis- 
cussions. 

Preliminary  examination  con- 
sists in  the  communication  by  the 
respective  agents  to  the  members 
of  the  tribunal  and  to  the  oppo- 
site party  of  all  printed  or  written 
acts  and  of  all  documents  contain- 
ing the  arguments  invoked  in  the 
case.  This  communication  shall 
be  made  in  the  form  and  within 


1907 

guages  are  to  be  used  has  not 
been  settled  by  the  compromis,  it 
shall  be  decided  by  the  tribunal.^ 

Article  62 

The  parties  are  entitled  to  ap- 
point special  agents  to  attend  the 
tribunal  to  act  as  intermediaries 
between  themselves  and  the  tri- 
bunal. 

They  are  further  authorized  to 
retain  for  the  defence  of  their 
rights  and  interests  before  the 
tribunal  counsel  or  advocates 
appointed  by  themselves  for  this 
purpose. 

The  members  of  the  Permanent 
Court  may  not  act  as  agents, 
counsel,  or  advocates  except  on 
behalf  of  the  Power  which  ap- 
pointed them  members  of  the 
Court. 


Article  63 

As  a general  rule,  arbitration 
procedure  comprises  two  distinct 
phases : zvritten  pleadings  and  oral 
discussions. 

The  pleadings  consist  in  the 
communication  by  the  respective 
agents  to  the  members  of  the  tri- 
bunal and  the  opposite  party  of 
cases,  counter-cases,  and,  if  nec- 
essary, of  replies;  the  parties  an- 
nex thereto  all  papers  and  docu- 
ments called  for  in  the  case.  This 
communication  shall  be  made 


^Cf.  Article  38  of  the  1899  Convention. 
*Cf.  Article  61  of  the  1907  Convention. 


Ixxx  THE  HAGUE  CONVENTIONS  OF  1899  AND  1907  FOR  THE 


1899 

et  dans  les  delais  determines 
par  le  Tribunal  en  vertu  de 
I’article  49. 


Les  debats  consistent  dans  le 
developpement  oral  des  moyens 
des  Parties  devant  le  Tribunal. 

Article  40 

Toute  piece  produite  par  Tune 
des  Parties  doit  etre  communi- 
quee  a I’autre  Partie. 


Article  41 

Les  debats  sont  diriges  par  [le] 
President. 

Ils  ne  sont  publics  qu’en  vertu 
d’une  decision  du  Tribunal,  prise 
avec  I’assentiment  des  Parties. 

Ils  sont  consignes  dans  les  pro- 
ces-verbaux  rediges  par  des  Sec- 
retaires que  nomme  le  President. 
Ces  proces-verbaux  ont  seuls  ca- 
ractere  authentique. 


Article  42 

L’instruction  etant  close,  le 
Tribunal  a le  droit  d’ecarter  du 
debat  tous  actes  ou  documents 
nouveaux  qu’une  des  Parties 


1907 

communication  aura  lieu,  directe- 
ment  ou  par  Pintermediaire  du 
Bureau  International,  dans  I’ordre 
et  dans  les  delais  determines  par 
le  compromis. 

Les  delais  fixes  par  le  com- 
promis pourront  etre  prolonges 
de  commun  aocord  par  les 
Parties,  ou  par  le  Tribunal 
quand  il  le  juge  necessaire  pour 
arriver  a une  decision  juste. 

Les  debats  consistent  dans  le 
developpement  oral  des  moyens 
des  Parties  devant  le  Tribunal. 

Article  64 

Toute  piece  produite  par  Tune 
des  Parties  doit  etre  communi- 
quee,  en  copie  certifiee  conforme, 
a I’autre  Partie. 

Article  65 

A moins  de  circonstances  spe- 
ciales,  le  Tribunal  ne  se  reunit 
qu’aprh  la  cloture  de  I’instruc- 
tion. 

Article  66 

Les  debats  sont  diriges  par  le 
President. 

Ils  ne  sont  publics  qu’en  vertu 
d’une  decision  du  Tribunal,  prise 
avec  I’assentiment  des  Parties. 

Ils  sont  consignes  dans  des  pro- 
ces-verbaux rediges  par  des  sec- 
retaires que  nomme  le  President. 
Ces  proces-verbaux  sont  signes 
par  le  President  et  par  un  des 
secretaires;  ils  ont  seuls  caractere 
authentique. 

Article  67 

L’instruction  etant  close,  le 
Tribunal  a le  droit  d’ecarter  du 
debat  tous  actes  ou  documents 
nouveaux  qu’une  des  Parties 


PACIFIC  SETTLEMENT  OF  INTERNATIONAL  DISPUTES 


Ixxxi 


1899 

the  periods  fixed  by  the  tribunal 
in  accordance  with  Article  49. 


Discussion  consists  in  the  oral 
development  before  the  tribunal 
of  the  arguments  of  the  parties. 

Article  40. 

Every  document  produced  by 
one  party  must  be  communicated 
to  the  other  party. 


Article  41 

The  discussions  are  under  the 
direction  of  the  president. 

They  are  only  public  if  it  be  so 
decided  by  the  tribunal,  with  the 
assent  of  the  parties. 

They  are  recorded  in  the  proces- 
verbaux  drawn  up  by  the  secre- 
taries appointed  by  the  president. 
These  proces-verbaux  alone  have 
an  authentic  character. 


Article  42 

When  the  preliminary  exami- 
nation is  concluded,  the  tribunal 
has  the  right  to  refuse  discussion 
of  all  fresh  acts  or  documents 


1907 

either  directly  or  through  the  in- 
termediary of  the  International 
Bureau,  in  the  order  and  within 
the  time  fixed  by  the  com- 
promis. 

The  time  fixed  by  the  com- 
promis  may  be  extended  by  mutual 
agreement  by  the  parties,  or  by 
the  tribunal  when  the  latter  con- 
siders it  necessary  for  the  purpose 
of  reaching  a just  decision. 

The  discussions  consist  in  the 
oral  development  before  the  tri- 
bunal of  the  arguments  of  the 
parties. 

Article  64 

A certified  copy  of  every  docu- 
ment produced  by  one  party  must 
be  communicated  to  the  other 
party. 

Article  65 

Unless  special  circumstances 
arise,  the  tribunal  does  not  meet 
until  the  pleadings  are  closed. 

Article  66 

The  discussions  are  under  the 
control  of  the  president. 

They  are  only  public  if  it  be  so 
decided  by  the  tribunal,  with  the 
assent  of  the  parties. 

They  are  recorded  in  minutes 
drawn  up  by  the  secretaries  ap- 
pointed by  the  president.  These 
minutes  are  signed  by  the  presi- 
dent and  by  one  of  the  secretaries 
and  alone  have  an  authentic 
character. 

Article  67 

After  the  close  of  the  pleadings, 
the  tribunal  is  entitled  to  refuse 
discussion  of  all  new  papers  or 
documents  which  one  of  the  par- 


Ixxxii  THE  HAGUE  CONVENTIONS  OF  1899  AND  1907  FOR  THE 


1899 

voudrait  lui  soumettre  sans  le 
consentement  de  I’autre. 


Article  43 

Le  Tribunal  demeure  libre  de 
prendre  en  consideration  les  actes 
ou  documents  nouveaux  sur  les- 
quels  les  agents  ou  conseils  des 
Parties  appelleraient  son  atten- 
tion. 

En  ce  cas,  le  Tribunal  a le 
droit  de  requerir  la  production 
de  ces  actes  ou  documents,  sauf 
I’obligation  d’en  donner  con- 
naissance  a la  Partie  adverse. 

Article  44 

Le  Tribunal  pent,  en  outre, 
requerir  des  agents  des  Parties  la 
production  de  tons  actes  et  de- 
mander  toutes  explications  neces- 
saires.  En  cas  de  refus,  le  Tri- 
bunal en  prend  acte. 

Article  45 

Les  agents  et  les  conseils  des 
Parties  sont  autorises  a presenter 
oralement  au  Tribunal  tous  les 
moyens  qu’ils  jugent  utiles  a la 
defense  de  leur  cause. 

Article  46 

Ils  ont  le  droit  de  soulever  des 
exceptions  et  incidents.  Les  de- 
cisions du  Tribunal  sur  ces  points 
sont  definitives  et  ne  peuvent  don- 
ner lieu  a aucune  discussion  ulte- 
rieure. 

Article  47 

Les  Membres  du  Tribunal  ont 
le  droit  de  poser  des  questions 
aux  agents  et  aux  conseils  des 


1907 

voudrait  lui  soumettre  sans  le 
consentement  de  I’autre. 


Article  68 

Le  Tribunal  demeure  libre  de 
prendre  en  consideration  les  actes 
ou  documents  nouveaux  sur  les- 
quels  les  agents  ou  conseils  des 
Parties  appelleraient  son  atten- 
tion. 

En  ce  cas,  le  Tribunal  a le 
droit  de  requerir  la  production 
de  ces  actes  ou  documents,  sauf 
I’obligation  d’en  donner  con- 
naissance  a la  Partie  adverse. 

Article  69 

Le  Tribunal  pent,  en  outre, 
requerir  des  agents  des  Parties  la 
production  de  tous  actes  et  de- 
mander  toutes  explications  neces- 
saires.  En  cas  de  refus,  le  Tri- 
bunal en  prend  acte. 

Article  70 

Les  agents  et  les  conseils  des 
Parties  sont  autorises  a presenter 
oralement  au  Tribunal  tous  les 
moyens  qu’ils  jugent  utiles  a la 
defense  de  leur  cause. 

Article  71 

Ils  ont  le  droit  de  soulever  des 
exceptions  et  des  incidents.  Les 
decisions  du  Tribunal  sur  ces 
points  sont  definitives  et  ne  peu- 
vent donner  lieu  a aucune  discus- 
sion ulterieure. 

Article  72 

Les  Membres  du  Tribunal  ont 
le  droit  de  poser  des  questions 
aux  agents  et  aux  conseils  des 


PACIFIC  SETTLEMENT  OF  INTERNATIONAL  DISPUTES  Ixxxiii 


1899 

which  one  party  may  desire  to 
submit  to  it  without  the  consent 
of  the  other  party. 

Article  43 

The  tribunal  is  free  to  take 
into  consideration  fresh  acts  or 
documents  to  which  its  attention 
may  be  drawn  by  the  agents  or 
counsel  of  the  parties. 

In  this  case,  the  tribunal  has 
the  right  to  require  the  production 
of  these  acts  or  documents,  but 
is  obliged  to  make  them  known  to 
the  opposite  party. 


Article  44 

The  tribunal  can,  besides,  re- 
quire from  the  agents  of  the  par- 
ties the  production  of  all  acts, 
and  can  demand  all  necessary 
explanations.  In  case  of  refusal, 
the  tribunal  takes  note  of  it. 

Article  45 

The  agents  and  counsel  of  the 
parties  are  authorized  to  present 
orally  to  the  tribunal  all  the  ar- 
guments they  may  think  expedi- 
ent in  defense  of  their  case. 

Article  46 

They  have  the  right  to  raise 
objections  and  points.  The  de- 
decisions of  the  tribunal  on  those 
points  are  final,  and  can  not  form 
the  subject  of  any  subsequent 
discussion. 

Article  47 

The  members  of  the  tribunal 
have  the  right  to  put  questions  to 
the  agents  and  counsel  of  the  par- 


1907 

ties  may  wish  to  submit  to  it 
without  the  consent  of  the  other 
party. 

Article  68 

The  tribunal  is  free  to  take  into 
consideration  new  papers  or  docu- 
ments to  which  its  attention  may 
be  drawn  by  the  agents  or  counsel 
of  the  parties. 

In  this  case,  the  tribunal  has 
the  right  to  require  the  production 
of  these  papers  or  documents,  but 
is  obliged  to  make  them  known  to 
the  opposite  party. 


Article  69 

The  tribunal  can,  besides,  re- 
quire from  the  agents  of  the  par- 
ties the  production  of  all  papers, 
and  can  demand  all  necessary 
explanations.  In  case  of  refusal 
the  tribunal  takes  note  of  it. 

Article  70 

The  agents  and  the  counsel  of 
the  parties  are  authorized  to  pre- 
sent orally  to  the  tribunal  all  the 
arguments  they  may  consider 
expedient  in  defense  of  their  case. 

Article  71 

They  are  entitled  to  raise  ob- 
jections and  points.  The  decisions 
of  the  tribunal  on  these  points  are 
final  and  can  not  form  the  subject 
of  any  subsequent  discussion. 


Article  72 

The  members  of  the  tribunal 
are  entitled  to  put  questions  to 
the  agents  and  counsel  of  the  par- 


Ixxxiv  THE, HAGUE  CONVENTIONS  OF  1899  AND  1907  FOR  THE 


1899 

Parties  et  de  leur  demander  des 
eclaircissements  sur  les  points 
douteux. 

Ni  les  questions  posees,  ni  les 
observations  faites  par  les  Mem- 
bres  du  Tribunal  pendant  le 
cours  des  debats  ne  peuvent  etre 
regardees  comme  I’expression  des 
opinions  du  Tribunal  en  general 
ou  de  ses  membres  en  particulier. 

Article  48 

Le  Tribunal  est  autorise  a de- 
terminer sa  competence  en  inter- 
pretant  le  compromis  ainsi  que 
les  autres  traites  qui  peuvent  etre 
invoques  dans  la  matiere,  et  en 
appliquant  les  principes  du  droit 
international. 

Article  49 

Le  Tribunal  a le  droit  de 
rendre  des  ordonnances  de  pro- 
cedure pour  la  direction  du 
proces,  de  determiner  les  formes 
et  delais  dans  lesquels  chaque 
Partie  devra  prendre  ses  con- 
clusions et  de  proceder  a toutes 
les  formalites  que  comporte 
Tadministration  des  preuves. 


1907 

Parties  et  de  leur  demander  des 
eclaircissements  sur  les  points 
douteux. 

Ni  les  questions  posees,  ni  les 
observations  faites  par  les  mem- 
bres du  Tribunal  pendant  le 
cours  des  debats  ne  peuvent  etre 
regardees  comme  I’expression  des 
opinions  du  Tribunal  en  general 
ou  de  ses  membres  en  particulier. 

Article  73 

Le  Tribunal  est  autorise  a de- 
terminer sa  competence  en  inter- 
pretant  le  compromis  ainsi  que 
les  autres  actes  et  documents  qui 
peuvent  etre  invoques  dans  la 
matiere,  et  en  appliquant  les 
principes  du  droit. 

Article  74 

Le  Tribunal  a le  droit  de 
rendre  des  ordonnances  de  pro- 
cedure pour  la  direction  du 
proces,  de  determiner  les  formes, 
I’ordre  et  les  delais  dans  lesquels 
chaque  Partie  devra  prendre  ses 
conclusions  finales,  et  de  proceder 
a toutes  les  formalites  que 
comporte  Tadministration  des 
preuves. 

Article  75 

Les  Parties  s’engagent  a,  four- 
nir  au  Tribunal,  dans  la  plus  large 
mesure  qu’Elles  jugeront  pos- 
sible, tous  les  moyens  neces- 
saires  pour  la  decision  du  litige. 

Article  76 

Pour  toutes  les  notifications 
que  le  I'ribunal  aurait  a faire  sur 
le  territoire  d’un  tierce  Puissance 
contractante,  le  Tribunal  s’adres- 
sera  directement  au  Gouverne- 
ment  de  cette  Puissance.  II  en 


PACIFIC  SETTLEMENT  OF  INTERNATIONAL  DISPUTES 


Ixxxv 


1899 

ties,  and  to  demand  explanations 
from  them  on  doubtful  points. 

Neither  the  questions  put  nor 
the  remarks  made  by  members  of 
the  tribunal  during  the  discus- 
sions can  be  regarded  as  an  ex- 
pression of  opinion  by  the  tri- 
bunal in  general,  or  by  its  mem- 
bers in  particular. 

Article  48 

The  tribunal  is  authorized  to 
declare  its  competence  in  inter- 
preting the  compromis  as  well  as 
the  other  treaties  which  may  be 
invoked  in  the  case,  and  in  apply- 
ing the  principles  of  international 
law. 

Article  49 

The  tribunal  has  the  right  to 
issue  rules  of  procedure  for  the 
conduct  of  the  case,  to  decide  the 
forms  and  periods  within  which 
each  party  must  conclude  its  ar- 
guments, and  to  arrange  all  the 
formalities  required  for  dealing 
with  the  evidence. 


1907 

ties,  and  to  ask  them  for  explana- 
tions on  doubtful  points. 

Neither  the  questions  put,  nor 
the  remarks  made  by  members  of 
the  tribunal  in  the  course  of  the 
discussions,  can  be  regarded  as 
an  expression  of  opinion  by  the 
tribunal  in  general  or  by  its  mem- 
bers in  particular. 

Article  73 

The  tribunal  is  authorized  to 
declare  its  competence  in  inter- 
preting the  compromis,  as  well  as 
the  other  papers  and  documents 
which  may  be  invoked,  and  in  ap- 
plying the  principles  of  law. 


Article  74 

The  tribunal  is  entitled  to  issue 
rules  of  procedure  for  the  conduct 
of  the  case,  to  decide  the  forms, 
order,  and  time  in  which  each 
party  must  conclude  its  final  argu- 
ments, and  to  arrange  all  the  for- 
malities required  for  dealing  with 
the  evidence. 


Article  75 

The  parties  undertake  to  sup- 
ply the  tribunal,  as  fully  as  they 
consider  possible,  with  all  the  in- 
formation required  for  deciding 
the  case. 


Article  76 

For  all  notices  which  the  tri- 
bunal has  to  serve  in  the  territory 
of  a third  contracting  Power,  the 
tribunal  shall  apply  direct  to  the 
Government  of  that  Power.  The 
same  rule  applies  in  the  case  of 


Ixxxvi  THE  HAGUE  CONVENTIONS  OF  1S99  AND  1907  FOR  THE 


1899 


Article  50 

Les  agents  et  les  conseils  des 
Parties  ayant  presente  tons  les 
eclaircissements  et  preuves  a 
I’appui  de  leur  cause,  le  President 
prononce  la  cloture  des  debats. 

Article  51 

Les  deliberations  du  Tribunal 
ont  lieu  a huis  clos.  Toute  decision 
est  prise  a la  majorite  des  Mem- 
bres  du  Tribunal. 


Le  refus  d’un  Membre  de 
prendre  part  au  vote  doit  etre 
constate  dans  le  proces-verbal. 

Article  52 

La  sentence  arbitrale,  votee  a 
la  majorite  des  voix,  est  motivee. 
Elle  est  redigee  par  ecrit  et 
signee  p>ar  chacun  des  membres 
du  Tribunal. 

Ceux  des  membres  qui  sont 
restes  en  minorite  peuvent  con- 
stater,  en  signant,  leur  dissenti- 
ment. 


1907 

sera  de  meme  s’il  s’agit  de  faire 
proceder  sur  place  a I’etablisse- 
ment  de  tons  moyens  de  preuve. 

Les  requites  adressees  d cet 
effet  seront  executees  suivant 
les  moyens  dont  la  Puissance 
requise  dispose  d’apres  sa  le- 
gislation interieure.  Elies  ne 
peuvent  etre  ref  usees  que  si 
cette  Puissance  les  juge  de  na- 
ture a porter  atteinte  d sa  souve- 
rainete  ou  d sa  securite. 

Le  Tribunal  aura  aussi  tou- 
jours  la  faculte  de  recourir  d 
I’intermediaire  de  la  Puissance 
sur  le  territoire  de  laquelle  il  a 
son  siige. 

Article  77 

Les  agents  et  les  conseils  des 
Parties  ayant  presente  tous  les 
eclaircissements  et  preuves  a 
I’appui  de  leur  cause,  le  President 
prononce  la  cloture  des  debats. 

Article  78 

Les  deliberations  du  Tribunal 
ont  lieu  a huis  clos  et  restent 
secrites. 

Toute  decision  est  prise  a la 
majorite  de  ses  membres. 


Article  79 

La  sentence  arbitrale  est  mo- 
tivee. Elle  mentionne  les  noms 
des  arbitres;  elle  est  signee  par 
le  President  et  par  le  greffier  ou 
le  secretaire  faisant  fonctions  de 
greffier. 


PACIFIC  SETTLEMENT  OF  INTERNATIONAL  DISPUTES  IxxXVU 


1899 


Article  50 

When  the  agents  and  counsel 
of  the  parties  have  submitted  all 
explanations  and  evidence  in 
support  of  their  case,  the  presi- 
dent pronounces  the  discussion 
closed. 

Article  51 

The  deliberations  of  the  tribu- 
nal take  place  in  private.  Every 
decision  is  taken  by  a majority 
of  members  of  the  tribunal. 


The  refusal  of  a member  to 
vote  must  be  recorded  in  the 
proces-verbal. 

Article  52 

The  award,  given  by  a major- 
ity of  votes,  is  accompanied  by  a 
statement  of  reasons.  It  is  drawn 
up  in  writing  and  signed  by  each 
member  of  the  tribunal. 

Those  members  who  are  in  the 
minority  may  record  their  dissent 
when  signing. 


1907 

steps  being  taken  to  procure  evi- 
dence on  the  spot. 

The  requests  for  this  purpose 
are  to  be  executed  as  far  as  the 
means  at  the  disposal  of  the 
Power  applied  to  under  its  munic- 
ipal law  allow.  They  can  not  be 
rejected  unless  the  Power  in  ques- 
tion considers  them  calculated  to 
impair  its  own  sovereign  rights  or 
its  safety. 

The  Court  will  equally  be 
always  entitled  to  act  through  the 
Power  on  whose  territory  it  sits. 

Article  77 

When  the  agents  and  counsel  of 
the  parties  have  submitted  all  the 
explanations  and  evidence  in  sup- 
port of  their  case  the  president 
shall  declare  the  discussion  closed. 

Article  78 

The  tribunal  considers  its  de- 
cisions in  private  and  the  proceed- 
ings remain  secret. 

All  questions  are  decided  by  a 
majority  of  its  members. 


Article  79 

The  award  must  give  the  rea- 
sons on  which  it  is  based.  It  con- 
tains the  names  of  the  arbitra- 
tors; it  is  signed  by  the  president 
and  registrar  or  by  the  secretary 
acting  as  registrar. 


Ixxxviii  THE  HAGUE  CONVENTIONS  OF  1899  AND  1907  FOR  THE 


1899 

Article  53 

La  sentence  arbitrale  est  lue  en 
seance  publique  du  Tribunal,  les 
agents  et  les  conseils  des  Parties 
presents  ou  dument  appeles. 

Article  54 

La  sentence  arbitrale,  dument 
prononcee  et  notifiee  aux  agents 
des  Parties  en  litige,  decide  defini- 
tivement  et  sans  appel  la  contes- 
tation. 


Article  55 

Les  Parties  peuvent  se  re- 
server dans  le  compromis  de  de- 
mander  la  revision  de  la  sentence 
arbitrale. 

Dans  ce  cas,  et  sauf  convention 
contraire,  la  demande  doit  etre 
adressee  au  Tribunal  qui  a rendu 
la  sentence.  Elle  ne  pent  etre 
motivee  que  par  la  decouverte 
d’un  fait  nouveau  qui  eut  ete  de 
nature  a exercer  une  influence 
decisive  sur  la  sentence  et  qui, 
lors  de  la  cloture  des  debats, 
etait  inconnu  du  Tribunal  lui- 
meme  et  de  la  Partie  qui  a 
demande  la  revision. 

La  procedure  de  revision  ne 
pent  etre  ouverte  que  par  une 
decision  du  Tribunal  constatant 
expressement  I’existence  du  fait 
nouveau,  lui  reconnaissant  les 
caracteres  prevus  par  le  para- 


1907 

Article  80 

La  sentence  est  lue  en  seance 
publique,  les  agents  et  les  conseils 
des  Parties  presents  ou  dument 
appeles. 

Article  81 

La  sentence,  dument  prononcee 
et  notifiee  aux  agents  des  Parties, 
decide  definitivement  et  sans 
appel  la  contestation. 

Article  82 

Tout  differcnd  qui  pourrait 
surgir  entre  les  Parties,  con- 
cernant  ^interpretation  et  I’exe- 
cution  de  la  sentence,  sera,  sauf 
stipulation  contraire,  soumis  au 
jugement  du  Tribunal  qui  I’a 
rendue. 

Article  83 

Les  Parties  peuvent  se  reserver 
dans  le  compromis  de  demander 
la  revision  de  la  sentence  ar- 
bitrale. 

Dans  ce  cas,  et  sauf  stipulation 
contraire,  la  demande  doit  etre 
adressee  au  Tribunal  qui  a rendu 
la  sentence.  Elle  ne  pent  etre 
motivee  que  par  la  decouverte 
d’un  fait  nouveau  qui  eut  ete  de 
nature  a exercer  une  influence 
decisive  sur  la  sentence  et  qui, 
lors  de  la  cloture  des  debats, 
etait  inconnu  du  Tribunal  lui- 
meme  et  de  la  Partie  qui  a 
demande  la  revision. 

La  procedure  de  revision  ne 
pent  etre  ouverte  que  par  une 
decision  du  Tribunal  constatant 
expressement  I’existence  du  fait 
nouveau,  lui  reconnaissant  les 
caracteres  prevus  par  le  para- 


PACIFIC  SETTLEMENT  OF  INTERNATIONAL  DISPUTES  Ixxxix 


1899 

Article  53 

The  award  is  read  out  at  a pub- 
lic meeting  of  the  tribunal,  the 
agents  and  counsel  of  the  parties 
being  present,  or  duly  summoned 
to  attend. 

Article  54 

The  award,  duly  pronounced 
and  notified  to  the  agents  of  the 
parties  at  variance,  puts  an  end  to 
the  dispute  definitively  and  with- 
out appeal. 


Article  55 

The  parties  can  reserve  in  the 
compromis  the  right  to  demand 
the  revision  of  the  award. 

In  this  case,  and  unless  there 
be  an  agreement  to  the  con- 
trary, the  demand  must  be  ad- 
dressed to  the  tribunal  which 
pronounced  the  award.  It  can 
only  be  made  on  the  ground  of 
the  discovery  of  some  new  fact 
calculated  to  exercise  a decisive 
influence  on  the  award,  and 
which,  at  the  time  the  discussion 
was  closed,  was  unknown  to  the 
tribunal  and  to  the  party  de- 
manding the  revision. 

Proceedings  for  revision  can 
only  be  instituted  by  a decision 
of  the  tribunal  expressly  record- 
ing the  existence  of  the  new  fact, 
recognizing  in  it  the  character 
described  in  the  foregoing  para- 


1907 

Article  80 

The  award  is  read  out  in  pub- 
lic sitting,  the  agents  and  counsel 
of  the  parties  being  present  or 
duly  summoned  to  attend. 

Article  81 

The  award,  duly  pronounced 
and  notified  to  the  agents  of  the 
parties,  settles  the  dispute  defin- 
itively and  without  appeal. 


Article  82 

Any  dispute  arising  between  the 
parties  as  to  the  interpretation  and 
execution  of  the  award  shall,  in 
the  absence  of  an  agreement  to  the 
contrary,  be  submitted  to  the  tri- 
bunal which  pronounced  it. 

Article  83 

The  parties  can  reserve  in  the 
compromis  the  right  to  demand 
the  revision  of  the  award. 

In  this  case  and  unless  there  be 
a stipulation  to  the  contrary,  the 
demand  must  be  addressed  to  the 
tribunal  which  pronounced  the 
award.  It  can  only  be  made  on  the 
ground  of  the  discovery  of  some 
new  fact  calculated  to  exercise  a 
decisive  influence  upon  the  award 
and  which  was  unknown  to  the  tri- 
bunal and  to  the  party  which  de- 
manded the  revision  at  the  time 
the  discussion  was  closed. 

Proceedings  for  revision  can 
only  be  instituted  by  a decision 
of  the  tribunal  expressly  record- 
ing the  existence  of  the  new  fact, 
recognizing  in  it  the  character 
described  in  the  preceding  para- 


xc 


THE  HAGUE  CONVENTIONS  OF  1899  AND  1907  FOR  THE 


1899 

graphe  precedent  et  declarant 
a ce  titre  la  demande  recevable. 

Le  compromis  determine  le 
delai  dans  lequel  la  demande  de 
revision  doit  etre  formee. 

Article  56 

La  sentence  arbitrale  n’est 
obligatoire  que  pour  les  Parties 
qui  ont  conclu  le  compromis. 

Lorsqu’il  s’agit  de  I’interpreta- 
tion  d’une  convention  a laquelle 
ont  participe  d’autres  Puissances 
que  les  Parties  en  litige,  celles-ci 
notifient  aux  premieres  le  com- 
promis qu’elles  ont  conclu.  Cha- 
cune  de  ces  Puissances  a le  droit 
d’intervenir  au  proces.  Si  une  ou 
plusieurs  d’entre  Elies  ont  profite 
de  cette  faculte,  I’interpretation 
contenue  dans  la  sentence  est 
egalement  obligatoire  a leur 
egard. 

Article  57 

Chaque  Partie  supporte  ses 
propres  frais  et  une  part  egale 
des  frais  du  Tribunal. 


1907 

graphe  precedent  et  declarant  a 
ce  titre  la  demande  recevable. 

Le  compromis  determine  le 
delai  dans  lequel  la  demande  de 
revision  doit  etre  formee. 

Article  84 

La  sentence  arbitrale  n’est 
obligatoire  que  pour  les  Parties 
en  litige. 

Lorsqu’il  s’agit  de  I’interpreta- 
tion  d’une  convention  a laquelle 
ont  participe  d’autres  Puissances 
que  les  Parties  en  litige,  celles-ci 
avertissent  en  temps  utile  toutes 
les  Puissances  signataires.  Cha- 
cune  de  ces  Puissances  a le  droit 
d’intervenir  au  proces.  Si  une 
ou  plusieurs  d’entre  Elies  ont 
profite  de  cette  faculte,  I’inter- 
pretation  contenue  dans  la  sen- 
tence est  egalement  obligatoire  a 
leur  %ard. 

Article  85 

Chaque  Partie  supporte  ses 
propres  frais  et  une  part  egale 
des  frais  du  Tribunal. 

Chapitre  IV. — De  la  procedure 
sommaire  d’arbitrage 

Article  86 

En  vue  de  faciliter  le  fonc- 
tionnement  de  la  justice  arbitrale, 
lorsqu’il  s’agit  de  litiges  de  nature 
a comporter  une  procedure  som- 
maire, les  Puissances  contrac- 
tantes  arretent  les  rdgles  ci-aprks 
qui  seront  suivies  en  I’absence 
de  stipulations  differentes,  et  sous 
reserve,  le  cas  echeant,  de  rap- 
plication  des  dispositions  du 
chapitre  III  qui  ne  seraient  pas 
contraires. 


PACIFIC  SETTLEMENT  OF  INTERNATIONAL  DISPUTES 


XCl 


1899 

graph,  and  declaring  the  demand 
admissible  on  this  ground. 

The  compromis  fixes  the  period 
within  which  the  demand  for  re- 
vision must  be  made. 

Article  56 

The  award  is  only  binding  on 
the  parties  who  concluded  the 
compromis. 

When  there  is  a question  of  in- 
terpreting a Convention  to  which 
Powers  other  than  those  con- 
cerned in  the  dispute  are  parties, 
the  latter  notify  to  the  former  the 
compromis  they  have  concluded. 
Each  of  these  Powers  has  the 
right  to  intervene  in  the  case.  If 
one  or  more  of  them  avail  them- 
selves of  this  right,  the  interpreta- 
tion contained  in  the  award  is 
equally  binding  on  them. 


Article  57 

Each  party  pays  its  own  ex- 
penses and  an  equal  share  of 
those  of  the  tribunal. 


1907 

graph,  and  declaring  the  demand 
admissible  on  this  ground. 

The  compromis  fixes  the  period 
within  which  the  demand  for  re- 
vision must  be  made. 

Article  84 

The  award  is  not  binding  ex- 
cept on  the  parties  in  dispute. 

When  it  concerns  the  interpre- 
tation of  a Convention  to  which 
Powers  other  than  those  in  dis- 
pute are  parties,  they  shall  inform 
all  the  signatory  Powers  in  good 
time.  Each  of  these  Powers  is 
entitled  to  intervene  in  the  case. 
If  one  or  more  avail  themselves 
of  this  right,  the  interpretation 
contained  in  the  award  is  equally 
binding  on  them. 


Article  85 

Each  party  pays  its  own  ex- 
penses and  an  equal  share  of  the 
expenses  of  the  tribunal. 

Chapter  IV. — Arbitration  by 
Summary  Procedure 

Article  86 

With  a view  to  facilitating  the 
working  of  the  system  of  arbitra- 
tion in  disputes  admitting  of  a 
summary  procedure,  the  contract- 
ing Powers  adopt  the  following 
rules,  which  shall  be  observed  in 
the  absence  of  other  arrangements 
and  subject  to  the  reservation  that 
the  provisions  of  Chapter  III  ap- 
ply so  far  as  may  be. 


xcii 


THE  HAGUE  CONVENTIONS  OF  1899  AND  1907  FOR  THE 

1899  1907 

Article  87 

Chacune  des  Parties  en  litige 
nomme  un  arbitre.  Les  deux  ar- 
bitres  ainsi  designes  choisissent 
un  surarbitre.  S’ils  ne  tombent 
pas  d’accord  a ce  sujet,  chacun 
presente  deux  candidats  pris  sur 
la  liste  generate  des  Membres  de 
la  Cour  permanente  en  dehors 
des  Membres  indiques  par  cha- 
cune des  Parties  Elles-metnes  et 
n’etant  les  nationaux  d’aucune 
d’Elles;  le  sort  determine  lequel 
des  candidats  ainsi  presentes  sera 
le  surarbitre. 

Le  surarbitre  preside  le  Tri- 
bunal, qui  rend  ses  decisions  a la 
majorite  des  voix. 

Article  88 

A defaut  d’accord  prealable,  le 
Tribunal  fixe,  d^s  qu’il  est  consti- 
tue,  le  delai  dans  lequel  les  deux 
Parties  dezront  lui  soumettre 
leurs  memoires  respectifs. 

Article  89 

Chaque  Partie  est  representSe 
devant  le  Tribunal  par  un  agent 
qui  sert  d'intermediaire  entre  le 
Tribunal  et  le  Gouvernement  qui 
I’a  designe. 


Article  90 

La  procedure  a lieu  exclusive- 
mcnt  par  ecrit.  Toutefois,  chaquc 
Partie  a le  droit  de  dcmcnder  la 
comparution  de  temoins  et  d’ ex- 
perts. Le  Tribunal  a,  de  son  cote, 
la  faculte  de  demander  des  expli- 
cations orales  aux  agents  des  deux 
Parties,  ainsi  qu’aux  experts  et 
aux  temoins  dont  il  juge  la  com- 
parution utile. 


PACIFIC  SETTLEMENT  OF  INTERNATIONAL  DISPUTES  Xciii 

1899  1907 

Article  87 

Each  of  the  parties  in  dispute 
appoints  an  arbitrator.  The  two 
arbitrators  thus  selected  choose  an 
umpire.  If  they  do  not  agree  on 
this  point,  each  of  them  proposes 
two  candidates  taken  from  the 
general  list  of  the  members  of  the 
Permanent  Court  exclusive  of  the 
members  appointed  by  either  of 
the  parties  and  not  being  nationals 
of  either  of  them;  which  of  the 
candidates  thus  proposed  shall  be 
the  umpire  is  determined  by  lot. 

The  umpire  presides  over  the 
tribunal,  which  gives  its  decisions 
by  a majority  of  votes. 

Article  88 

In  the  absence  of  any  previous 
agreement  the  tribunal,  as  soon  as 
it  is  formed,  settles  the  time  with- 
in which  the  two  parties  must  sub- 
mit their  respective  cases  to  it. 

Article  89 

Each  party  is  represented  be- 
fore the  tribunal  by  an  agent,  who 
serves  as  intermediary  between 
the  tribunal  and  the  Govern- 
ment who  appointed  him. 

Article  90 

The  proceedings  are  conducted 
exclusively  in  writing.  Each  party, 
however,  is  entitled  to  ask  that 
witnesses  and  experts  should  be 
called.  The  tribunal  has,  for  its 
part,  the  right  to  demand  oral 
expla'nations  from  the  agents  of 
the  two  parties,  as  well  as  from 
the  experts  and  witnesses  whose 
appearance  in  Court  it  may  con- 
sider useful. 


XCIV 


THE  HAGUE  CONVENTIONS  OF  1899  AND  1907  FOR  THE 


1899 

Dispositions  Generales 


Article  58 

La  presente  Convention  sera 
ratifiee  dans  le  plus  bref  delai 
possible. 

Les  ratifications  seront  de- 
posees  a La  Haye. 

II  sera  dresse  du  depot  de 
chaque  ratification  un  proces- 
verbal,  dont  une  copie,  certifiee 
conforme,  sera  remise  par  la 
voie  diplomatique  a toutes  les 
Puissances  qui  ont  ete  repre- 
sentees a la  Conference  Inter- 
nationale de  la  Paix  de  La  Haye. 


1907 

Litre  V. — Dispositions  Finales 
Article  91 

La  presente  Convention  du- 
ment  ratifiee  remplacera,  dans 
les  rapports  entre  les  Puissances 
contractantes,  la  Convention  pour 
le  reglement  pacifique  des  con- 
fiits  internationaux  du  zg  juillet 
1899. 

Article  92 

La  presente  Convention  sera 
ratifiee  aussitot  que  possible. 

Les  ratifications  seront  de- 
posees  a La  Haye. 

Le  premier  depot  de  ratifica- 
tions sera  constate  par  un  procbs- 
verbal  signe  par  les  representants 
des  Puissances  qui  y prennent 
part  et  par  le  Ministre  des 
Affaires  Ftrangeres  des  Pays- 
Bas. 

Les  depots  ulterieurs  de  rati- 
fications se  feront  ou  moyen  d’une 
notification  ecrite,  adressee  au 
Gouvernetnent  des  Pays-Bas  et 
accompagnee  de  I’instrument  de 
ratification. 

Copie  certifiee  conforme  du 
proc^s-verbal  relatif  au  premier 
depot  de  ratifications,  des  noti- 
fications mentionnees  d I’alinea 
precMent,  ainsi  que  des  instru- 
ments de  ratification,  sera  im- 
mediatement  remise,  par  les  soins 
du  Gouvernetnent  des  Pays-Bas 
et  par  la  voie  diplomatique,  aux 
Puissances  conznees  a la  Deux- 
ikme  Conference  de  la  Paix, 
ainsi  qu’aux  autres  Puissances 
qui  auront  adhere  d la  Convettr- 
tion.  Dans  les  cos  visis  par 
Valine  a precedent,  ledit  Gou- 
vernement  Leur  fera  connaitre 


PACIFIC  SETTLEMENT  OF  INTERNATIONAL  DISPUTES 


XCV 


1899 

General  Provisions 


Article  58 

The  present  Convention  shall 
be  ratified  as  speedily  as  possible. 

The  ratifications  shall  be  de- 
posited at  The  Hague. 

A proces-verbal  shall  be  drawn 
up  recording  the  receipt  of  each 
ratification,  and  a copy  duly  cer- 
tified shall  be  sent,  through  the 
diplomatic  channel,  to  all  the 
Powers  who  were  represented  at 
the  International  Peace  Confer- 
ence at  The  Hague. 


1907 

Part  V. — Final  Provisions 
Article  91 

The  present  Convention,  duly 
ratified,  shall  replace,  as  between 
the  contracting  Powers,  the  Con- 
vention for  the  pacific  settlement 
of  international  disputes  of  the 
2gth  July,  i8gg. 

Article  92 

The  present  Convention  shall 
be  ratified  as  soon  as  possible. 

The  ratifications  shall  be  de- 
posited at  The  Hague. 

The  first  deposit  of  ratifications 
shall  be  recorded  in  a proces-ver- 
bal signed  by  the  representatives 
of  the  Powers  which  take  part 
therein  and  by  the  Netherland 
Minister  for  Foreign  Affairs. 

The  subsequent  deposits  of 
ratifications  shall  be  made  by 
means  of  a written  notification, 
addressed  to  the  Netherland  Gov- 
ernment and  accompanied  by  the 
instrument  of  ratification. 

A duly  certified  copy  of  the 
proces-verbal  relative  to  the  first 
deposit  of  ratifications,  of  the 
notifications  mentioned  in  the 
preceding  paragraph,  and  of  the 
instruments  of  ratification,  shall 
be  immediately  sent  by  the  Neth- 
erland Government,  through  the 
diplomatic  channel,  to  the  Powers 
invited  to  the  Second  Peace  Con- 
ference, as  well  as  to  those  Powers 
which  have  adhered  to  the  Con- 
vention. In  the  cases  contem- 
plated in  the  preceding  paragraph, 
the  said  Government  shall  at  the 
same  time  inform  the  Powers  of 


XCVl 


THE  HAGUE  CONVENTIONS  OF  1899  AND  1907  FOR  THE 


1899 


Article  59 

Les  Puissances  non  signataires 
qui  ont  ete  representees  a la  Con- 
ference Internationale  de  la  Paix 
pourront  adherer  a la  presente 
Convention.  Elies  auront  a cet 
effet  a faire  connaitre  leur  ad- 
hesion aux  Puissances  con- 
tractantes,  au  moyen  d’une 
notification  ecrite,  adressee  au 
Gouvemement  des  Pays-Bas  et 
communiquee  par  celui-ci  a 
toutes  les  autres  Puissances  con- 
tractantes. 


Article  60 

Les  conditions  auxquelles  les 
Puissances  qui  n’ont  pas  ete  re- 
presentees a la  Conference  Inter- 
nationale de  la  Paix  pourront 
adherer  a la  presente  Convention 
formeront  I’objet  d’une  entente 
ulteiieure  entre  les  Puissances 
contractantes. 


1907 

en  meme  temps  la  date  a laquelle 
il  a regu  la  notification. 

Article  93 

Les  Puissances  non  signataires 
qui  ont  ete  conviees  a la  Deu- 
xieme  Conference  de  la  Paix 
pourront  adherer  a la  presente 
Convention. 

La  Puissance  qui  desire  ad- 
herer notifie  par  ecrit  son  in- 
tention au  Gouvemement  des 
Pays-Bas  en  lui  transmettant 
I’acte  d’adhesion  qui  sera  de- 
pose dans  les  archives  du4it 
Gouvemement. 

Ce  Gouvemement  transmettra 
immediatement  d toutes  les  autres 
Puissances  conviees  a la  Deu- 
xihne  Conference  de  la  Paix  copie 
certifiee  conforme  de  la  notifica- 
tion ainsi  que  de  Vacte  d’ad- 
hesion, en  indiquant  la  date  d 
laquelle  il  a regu  la  notification. 

Article  94 

Les  conditions  auxquelles  les 
Puissances  qui  n’ont  pas  ete  con- 
znees  a la  Deuxibme  Conference 
de  la  Paix,  pourront  adherer  ;\ 
la  presente  Convention,  formc- 
ront  I’objet  d’une  entente  ulte- 
rieure  entre  les  Puissances  con- 
tractantes. 

Article  95 

La  presente  Convention  pro- 
duira  effet,  pour  les  Puissances 
qui  auront  participe  au  premier 
depot  de  ratifications,  soixante 
jours  aprbs  la  date  du  proces- 


PACIFIC  SETTLEMENT  OF  INTERNATIONAL  DISPUTES 


XCVll 


1899 


Article  59 

The  non-signatory  Powers  who 
were  represented  at  the  Interna- 
tional Peace  Conference  can  ad- 
here to  the  present  Convention. 
For  this  purpose  they  must  make 
known  their  adhesion  to  the  con- 
tracting Powers  by  a written  noti- 
fication addressed  to  the  Nether- 
land  Government,  and  communi- 
cated by  it  to  all  the  other  con- 
tracting Powers. 


Article  60^ 

The  conditions  on  which  the 
Powers  who  were  not  represented 
at  the  International  Peace  Con- 
ference can  adhere  to  the  present 
Convention  shall  form  the  subject 
of  a subsequent  agreement  among 
the  contracting  Powers. 


1907 

the  date  on  which  it  received  the 
notification. 

Article  93 

Non-signatory  Powers  which 
have  been  invited  to  the  Second 
Peace  Conference  may  adhere  to 
the  present  Convention. 

The  Power  which  desires  to  ad- 
here notifies  its  intention  in  writ- 
ing to  the  Netherland  Govern- 
ment, forwarding  to  it  the  act  of 
adhesion,  which  shall  be  deposited 
in  the  archives  of  the  said  Govern- 
ment. 


This  Government  shall  imme- 
diately forward  to  all  the  other 
Powers  invited  to  the  Second 
Peace  Conference  a duly  certified 
copy  of  the  notification  as  well  as 
of  the  act  of  adhesion,  mentioning 
the  date  on  which  it  received  the 
notification. 

Article  94 

The  conditions  on  which  the 
Powers  which  have  not  been 
invited  to  the  Second  Peace  Con- 
ference may  adhere  to  the  present 
Convention  shall  form  the  subject 
of  a subsequent  agreement  be- 
tween the  contracting  Powers. 


Article  95 

The  present  Convention  shall 
take  effect,  in  the  case  of  the 
Powers  zvhich  were  not  a party  to 
the  first  deposit  of  ratifications, 
sixty  days  after  the  date  of  the 

lA  protocol  establishing,  as  regards  the  Powers  unrepresented  at  the  First 
Conference,  the  mode  of  adhesion  to  this  Convention,  was  signed  at  The 
Hague,  June  14,  1907,  by  representatives  of  all  the  Powers  represented  at  the 
1899  Conference. 


xcvili  THE  HAGUE  CONVENTIONS  OF  1899  AND  1907  FOR  THE 


1899 


Article  61 

S’il  arrivait  qu’une  des  Hautes 
Parties  contractantes  denongat  la 
presente  Convention,  cette  de- 
nonciation  ne  produirait  ses  effets 
qu’un  un  apres  la  notification 
faite  par  ecrit  au  Gouvernement 
des  Pays-Bas  et  communiquee 
immediatement  par  celui-ci  a 
toutes  les  autres  Puissances  con- 
tractantes. 

Cette  denonciation  ne  pro- 
duira  ses  effets  qu’a  I’egard  de  la 
Puissance  qui  Taura  notifiee. 


En  foi  de  quoi,  les  Plenipoten- 
tiaires  ont  signe  la  presente  Con- 
vention et  I’ont  revetue  de  leurs 


1907 

verbal  de  ce  depot  et,  pour  les 
Puissances  qui  ratifieront  ulte- 
rieurement  ou  qui  adhereront, 
soixante  jours  apres  que  la  noti- 
fication de  leur  ratification  ou  de 
leur  adhesion  aura  ete  regue  par 
le  Gouvernement  des  Pays-Bas. 

Article  96 

S’il  arrivait  qu’une  des  Puis- 
sances contractantes  voulut  de- 
noncer  la  presente  Convention, 
la  denonciation  sera  notifiee  par 
ecrit  au  Gouvernement  des  Pays- 
Bas  qui  communiquera  imme- 
diatement copie  certifiee  conforme 
de  la  notification  a toutes  les 
autres  Puissances  en  leur  faisant 
savoir  la  date  a laquelle  il  I’a 
regue. 

La  denonciation  ne  produira 
ses  effets  qu’a  I’egard  de  la  Puis- 
sance qui  I’aura  notifiee  et  un  an 
aprks  que  la  notification  en  sera 
parvenue  au  Gouvernement  des 
Pays-Bas. 

Article  97 

Un  registre  tenu  par  le  Minis- 
tdre  des  Affaires  Btrangkres  des 
Pays-Bas  indiquera  la  date  du 
depdt  de  ratifications  effectue 
en  vertu  de  I’article  g2  alineas 
j et  4,  ainsi  que  la  date  a laquelle 
auront  ete  regues  les  notifications 
d’adhesion  {article  pj  alinea  2) 
ou  de  denonciation  (article  pd 
alinea  i). 

Chaque  Puissance  contrac- 
tante  est  admise  a prendre  con- 
naissatice  de  ce  registre  et  a en 
demander  des  extraits  certifies 
conformes. 

En  foi  de  quoi,  les  Plenipoten- 
tiaires  ont  revetu  la  presente  Con- 
vention de  leurs  sigfiatures. 


sceaux. 


PACIFIC  SETTLEMENT  OF  INTERNATIONAL  DISPUTES 


XCIX 


1899 


Article  61 

In  the  event  of  one  of  the  high 
contracting  Parties  denouncing 
the  present  Convention,  this  de- 
nunciation would  not  take  effect 
until  a year  after  its  notification 
made  in  writing  to  the  Nether- 
land  Government,  and  by  it  com- 
mimicated  at  once  to  all  the  other 
contracting  Powers. 

This  denunciation  shall  only 
affect  the  notifying  Power. 


In  faith  of  which  the  plenipo- 
tentiaries have  signed  the  present 
Convention  and  affixed  their  seals 
to  it. 


1907 

proces-verbal  of  this  deposit,  and, 
in  the  case  of  the  Powers  which 
ratify  subsequently  or  which  ad- 
here, sixty  days  after  the  notifica- 
tion of  their  ratification  or  of  their 
adhesion  has  been  received  by  the 
N etherland  Government. 

Article  96 

In  the  event  of  one  of  the  con- 
tracting Powers  wishing  to  de- 
nounce the  present  Convention, 
the  denunciation  shall  be  notihed 
in  writing  to  the  Netherland  Gov- 
ernment, which  shall  immediately 
communicate  a duly  certified  copy 
of  the  notification  to  all  the  other 
Powers  informing  them  of  the 
date  on  which  it  was  received. 

The  denunciation  shall  only 
have  effect  in  regard  to  the  noti- 
fying Power,  and  one  year  after 
the  notification  has  reached  the 
N etherland  Government. 

Article  97 

A register  kept  by  the  Nether- 
land Minister  for  Foreign  Affairs 
shall  give  the  date  of  the  deposit 
of  ratifications  effected  in  virtue 
of  Article  gs,  paragraphs  5 and  4, 
as  well  as  the  date  on  which  the 
notifications  of  adhesion  (Article 
93 j paragraph  2)  or  of  denuncia- 
tion (Article  96,  paragraph  i) 
have  been  received. 

Each  contracting  Power  is  en- 
titled to  have  access  to  this  regis- 
ter and  to  be  supplied  with  duly 
certified  extracts  from  it. 

In  faith  whereof  the  plenipo- 
tentiaries have  appended  their 
signatures  to  the  present  Conven- 
tion. 


c 


THE  HAGUE  CONVENTIONS  OF  1899  AND  1907  FOR  THE 


1899 

Fait  a La  Haye,  le  vingt  neuf 
juillet,  mille  huit  cents  quatre 
vingt  dix-neuf,  en  un  seul  exem- 
plaire  qui  restera  depose  dans  les 
archives  du  Gouvernement  des 
Pays-Bas,  et  dont  des  copies,  cer- 
tifiees  conformes,  seront  remises 
par  la  voie  diplomatique  aux 
Puissances  contractantes. 


1907 

Fait  a La  Haye,  le  dix-huit 
octobre  mil  neuf  cent  sept,  en  un 
seul  exemplaire  qui  restera  de- 
pose dans  les  archives  du  Gou- 
vemement  des  Pays-Bas  et  dont 
des  copies  certifiees  conformes, 
seront  remises  par  la  voie  di- 
plomatique aux  Puissances  con- 
tractantes. 


PACIFIC  SETTLEMENT  OF  INTERNATIONAL  DISPUTES 


Cl 


1899 

Done  at  The  Hague,  the  29th 
July,  1899,  in  a single  copy,  which 
shall  remain  in  the  archives  of 
the  Netherland  Government,  and 
copies  of  it,  duly  certified,  be  sent 
through  the  diplomatic  channel  to 
the  contracting  Powers. 

[Here  follow  signatures.] 


1907 

Done  at  The  Hague,  the  i8th 
October^  iQoy,  in  a single  copy, 
which  shall  remain  deposited  in 
the  archives  of  the  Netherland 
Government,  and  duly  certified 
copies  of  which  shall  be  sent, 
through  the  diplomatic  channel, 
to  the  contracting  Powers. 

[Here  follow  signatures.] 


THE  HAGUE  CONVENTIONS  OF  1899  AND  1907  FOR  THE 


cii 


RATIFICATIONS,  ADHESIONS  AND  RESERVATIONS 


The  1899  Convention  was  ratified  by  all  the  signatory  Powers  on 
the  dates  indicated: 


Austria-Hungary  . , . . 

Belgium 

Bulgaria  

China 

Denmark  

France  

Germany 

Great  Britain 

Greece  

Italy 

Japan  

Luxemburg 

Mexico 

Montenegro 

Netherlands  

Norway 

Persia  

Portugal  

Roumania 

Russia 

Serbia  

Siam  

Spain 

Sweden  and  Norway 

Switzerland 

Turkey  

United  States 


September  4,  1900 

September  4,  1900 

September  4,  1900 

November  21,  1904 

September  4,  1900 

September  4,  1900 

September  4,  1900 

September  4,  1900 

April  4,  1901 

September  4,  1900 

October  6,  1900 

July  12,  1901 

April  17,  1901 

October  16,  1900 

September  4,  1900 

(See  Sweden  and  Norway.) 

September  4,  1900 

September  4,  1900 

September  4,  1900 

September  4,  1900 

May  11,  1901 

September  4,  1900 

September  4,  1900 

September  4,  1900 

December  29,  1900 

June  12,  1907 

September  4,  1900 


Adhesions: 

Argentine  Republic  , 

Bolivia  

Brazil  

Chile  

Colombia  

Cuba  

Dominican  Republic 

Ecuador  

Guatemala  

Haiti  

Nicaragua 

Panama  

Paraguay  

Peru  

Salvador  

Uruguay  

Venezuela 


June 

15, 

1907 

June 

15, 

1907 

June 

15, 

1907 

June 

15, 

1907 

June 

15, 

1907 

June 

15, 

1907 

June 

15, 

1907 

. .July  3, 

1907 

June 

15, 

1907 

June 

15, 

1907 

June 

15, 

1907 

June 

15, 

1907 

June 

15, 

1907 

Tune 

15, 

1907 

June 

20, 

1907 

June 

17, 

1907 

June 

15, 

1907 

PACIFIC  SETTLEMENT  OF  INTERNATIONAL  DISPUTES 


cm 


Reservations:^ 

Roumania 

Under  the  reservations  formulated  with  respect  to  Articles 
16,  17  and  19  of  the  present  Convention  (15,  16  and  18  of  the 
project  presented  by  the  committee  on  examination),  and 
recorded  in  the  proces-verbal  of  the  sitting  of  the  Third 
Commission  of  July  20,  1899.^ 

Extract  from  the  proces-verbal: 

The  Royal  Government  of  Roumania  being  completely  in 
favor  of  the  principle  of  facultative  arbitration,  of  which  it  appre- 
ciates the  great  importance  in  international  relations,  neverthe- 
less does  not  intend  to  undertake,  by  Article  15,  an  engagement 
to  accept  arbitration  in  every  case  there  provided  for,  and  it 
believes  it  ought  to  form  express  reservations  in  that  respect. 

It  can  not  therefore  vote  for  this  article,  except  under  that 
reservation. 

The  Royal  Government  of  Roumania  declares  that  it  can  not 
adhere  to  Article  16  except  with  the  express  reservation,  entered 
in  the  proees-verbal,  that  it  has  decided  not  to  accept,  in  any 
case,  an  international  arbitration  for  disagreements  or  disputes 
previous  to  the  conclusion  of  the  present  Convention. 

The  Royal  Government  of  Roumania  declares  that  in  ad- 
hering to  Article  18  of  the  Convention,  it  makes  no  engagement 
in  regard  to  obligatory  arbitration.® 


Serbia 

Under  the  reservations  recorded  in  the  proces-verbal  of  the 
Third  Commission  of  July  20,  1899.^ 

Extract  from  the  proees-verbal: 

In  the  name  of  the  Royal  Government  of  Serbia,  we  have  the 
honor  to  declare  that  our  adoption  of  the  principle  of  good 
offices  and  mediation  does  not  imply  a recognition  of  the  right 
of  third  States  to  use  these  means  except  with  the  extreme  re- 
serve which  proceedings  of  this  delicate  nature  require. 

We  do  not  admit  good  offices  and  mediation  except  on  con- 
dition that  their  character  of  purely  friendly  counsel  is  main- 
tained fully  'and  completely,  and  we  never  could  accept  them 
in  forms  and  circumstances  such  as  to  impress  upon  them  the 
character  of  intervention.* 


Turkey 

Under  reservation  of  the  declaration  made  in  the  plenary 
sitting  of  the  Conference  of  July  25,  1899. 

Extract  from  the  proces-verbal: 

The  Turkish  delegation,  considering  that  the  work  of  this 
Conference  has  been  a work  of  high  loyalty  and  humanity, 
destined  solely  to  assure  general  peace  by  safeguarding  the  in- 
terests and  the  rights  of  each  one,  declares,  in  the  name  of  its 
Government,  that  it  adheres  to  the  project  just  adopted,  on  the 
following  conditions : 


*A11  these  reservations  were  made  at  signature. 

^Reservations  maintained  at  ratification. 

^Declaration  of  Mr.  Beldiman.  Proch-verbaux,  pt.  iv,  pp.  48,  49. 
^Declaration  of  Mr.  Miyatovitch,  Ibid.,  p.  47. 


CIV 


THE  HAGUE  CONVENTIONS  OF  1899  AND  1907  FOR  THE 


1.  It  is  formally  understood  that  recourse  to  jood  offices 
and  mediation,  to  commissions  of  inquiry  and  arbitration  is 
purely  facultative  and  could  not  in  any  case  assume  an  obligatory 
character  or  degenerate  into  interventions; 

2.  The  Imperial  Government  itself  will  be  the  judge  of  the 
cases  where  its  interests  would  permit  it  to  admit  these  methods 
without  its  abstention  or  refusal  to  have  recourse  to  them  being 
considered  by  the  signatory  States  as  an  unfriendly  act. 

It  goes  without  saying  that  in  no  case  could  the  means  in 
question  be  applied  to  questions  concerning  interior  regulation.^ 

United  States 

Under  reservation  of  the  declaration  made  at  the  plenary- 
sitting  of  the  Conference  on  the  25th  of  July,  1899.* 

Extract  from  the  proces-verbal: 

The  delegation  of  the  United  States  of  America  on  signing 
the  Convention  for  the  pacific  settlement  of  international  dis- 
putes, as  proposed  by  the  International  Peace  Conference,  makes 
the  following  declaration  : 

Nothing  contained  in  this  Convention  shall  be  so  construed  as 
to  require  the  United  States  of  America  to  depart  from  its 
traditional  policy  of  not  intruding  upon,  interfering  with,  or 
entangling  itself  in  the  political  questions  or  policy  or  internal 
administration  of  any  foreign  State;  nor  shall  anything  con- 
tained in  the  said  Convention  be  construed  to  imply  a relinquish- 
ment by  the  United  States  of  America  of  its  traditional  attitude 
toward  purely  American  questions.® 


The  1907  Convention  was  ratified  by  the  following 
Powers  on  the  dates  indicated : 


Austria-Hungary 

Belgium  

Bolivia  

Brazil 

China 

Cuba  

Denmark 

France  

Germany 

Guatemala 

Haiti  

Japan  

Luxemburg  .... 

Mexico  

Netherlands  . . . 

Norway  

Panama  


.November  27, 
. . . .August  8, 
November  27, 

January  5, 

.November  27, 
.February  22, 
.November  27, 
. . . . October  7, 
• November  27, 
. . . .March  15, 
. . February  2, 
.December  13, 
. .September  5, 
November  27, 
November  27, 
September  19, 
September  11, 


signatory 

1909 

1910 
1909 
1914 
1909 
1912 

1909 

1910 

1909 

1911 

1910 

1911 

1912 
1909 

1909 

1910 

1911 


^Declaration  of  Turkhan  Pasha.  Proc^s-verbaux,  pt.  i,  p.  70.  This  reserva- 
tion does  not  appear  in  the  instrument  of  ratification. 

^Reservation  maintained  at  ratification. 

®/6id.,  p.  69.  Compare  the  reservation  of  the  United  States  to  the  1907  Con- 
vention. 


PACIFIC  SETTLEMENT  OF  INTERNATIONAL  DISPUTES 


CV 


Portugal  ... 
Roumania  . . 

Russia  

Salvador  . . . 

Siam  

Spain  

Sweden  

Switzerland  . 
United  States 


. . . .April  13, 
....  March  1, 
November  27, 
November  27, 
, . . . March  12, 
, . . . March  18, 
November  27, 

May  12, 

November  27, 


1911 

1912 
1909 

1909 

1910 

1913 

1909 

1910 
1909 


Adhesion: 

Nicaragua 


December  16,  1909 


The  following  Powers  signed  the  Convention  but  have  not  yet 
ratified : 


Argentine  Republic 

Bulgaria 

Chile 

Colombia 

Dominican  Republic 

Ecuador 

Great  Britain 

Greece 

Italy 


Montenegro 

Paraguay 

Persia 

Peru 

Serbia 

Turkey 

Uruguay 

Venezuela 


Reservations:^ 

Brazil 

With  reservation  as  to  Article  53,  paragraphs  2,  3,  and  4.* 
Chile 

Under  reservation  of  the  declaration  formulated  with  regard 
to  Article  39  in  the  seventh  meeting  of  the  First  Commission 
on  October  7. 

Extract  from  the  proces-verbal: 

The  delegation  of  Chile  desires  to  make  the  following  decla- 
ration in  the  name  of  its  Government  with  respect  to  this  article. 
Our  delegation  at  the  time  of  signing  the  Convention  of  1899 
for  the  pacific  settlement  of  international  disputes  did  so  with 
the  reservation  that  the  adhesion  of  its  Government  as  regards 
Article  17  would  not  include  controversies  or  questions  prior  to 
the  celebration  of  the  Convention. 

The  delegation  of  Chile  believes  it  to  be  its  duty  to-day  to  re- 
new, with  respect  to  the  same  provision,  the  reservation  that  it 
has  previously  made,  although  it  may  not  be  strictly  necessary 
in  view  of  the  similar  character  of  the  provision.® 


^All  these  reservations  were  made  at  signature  except  the  second  reservation 
of  the  United  States. 

^Reservation  maintained  at  ratification. 

^Statement  of  Mr.  Domingo  Gana.  Actes  et  documents,  vol.  ii,  p.  121. 


CVl 


THE  HAGUE  CONVENTIONS  OF  1899  AND  1907  FOR  THE 


Greece 

With  the  reservation  of  paragraph  2 of  Article  53. 

Japan 

With  reservation  of  paragraphs  3 and  4 of  Article  48,  of  para- 
graph 2 of  Article  53  and  of  Article  54.^ 

Roumania 

With  the  same  reservations  formulated  by  the  Roumanian 
plenipotentiaries  on  signing  the  Convention  for  the  pacific 
settlement  of  international  disputes  of  July  29,  1899.^ 

Switzerland 

Under  reservation  of  Article  53,  number  2} 

Turkey 

Under  reservation  of  the  declarations  recorded  in  the  proces- 
verbal  of  the  ninth  plenary  session  of  the  Conference  held  on 
October  16,  1907. 

Extract  from  the  proces-verbal: 

The  Ottoman  delegation  declares,  in  the  name  of  its  Govern- 
ment, that  while  it  is  not  unmindful  of  the  beneficent  influence 
which  good  offices,  mediation,  commissions  of  inquiry  and  arbi- 
tration are  able  to  exercise  on  the  maintenance  of  the  pacific 
relations  between  States,  in  giving  its  adhesion  to  the  whole  of 
the  draft,  it  does  so  on  the  understanding  that  such  methods  re- 
main, as  before,  purely  optional ; it  could  in  no  case  recognize 
them  as  having  an  obligatory  character  rendering  them  susceptible 
of  leading  directly  or  indirectly  to  an  intervention. 

The  Imperial  Government  proposes  to  remain  the  sole  judge 
of  the  occasions  when  it  shall  be  necessary  to  have  recourse 
to  the  different  proceedings  or  to  accept  them  without  its  deter- 
mination on  the  point  being  liable  to  be  viewed  by  the  signatory 
States  as  an  unfriendly  act. 

It  is  unnecessary  to  add  that  such  methods  should  never  be 
applied  in  cases  of  internal  order.^ 

United  States 

Under  reservation  of  the  declaration  made  in  the  plenary  ses- 
sion of  the  Conference  held  on  October  16,  1907.^ 

Extract  from  the  procis-verbal: 

The  delegation  of  the  United  States  renews  the  reserva- 
tion made  in  1899  on  the  subject  of  Article  48  of  the  Conven- 
tion for  the  pacific  settlement  of  international  disputes  in  the 
form  of  the  following  declaration : 

Nothing  contained  in  this  Convention  shall  be  so  construed 
as  to  require  the  United  States  of  America  to  depart  from  its  tra- 
ditional policy  of  not  intruding  upon,  interfering  with,  or  en- 
tangling itself  in  ,the  political  questions  of  policy  or  internal 
administration  of  any  foreign  State ; nor  shall  anything  contained 
in  the  said  Convention  be  construed  to  imply  a relinquishment 
by  the  United  States  of  America  of  its  traditional  attitude  toward 
purely  American  questions.® 


1 Reservation  maintained  at  ratification. 

^Statements  of  Turkhan  Pasha.  Actes  et  documents,  vol.  i.  p.  336. 
^Statement  of  Mr.  David  Jayne  Hill.  Ibid.,  vol.  i,  p.  33.S. 


PACIFIC  SETTLEMENT  OF  INTERNATIONAL  DISPUTES  CVll 

The  act  of  ratification  contains  the  following  reservation : 

That  the  United  States  approves  this  Convention  with  the  un- 
derstanding that  recourse  to  the  Permanent  Court  for  the  settle- 
ment of  differences  can  be  had  only  by  agreement  thereto  through 
general  or  special  treaties  of  arbitration  heretofore  or  hereafter 
concluded  between  the  parties  in  dispute;  and  the  United  States 
now  exercises  the  option  contained  in  Article  53  of  said  Con- 
vention, to  exclude  the  formulation  of  the  compromis  by  the 
Permanent  Court,  and  hereby  excludes  from  the  competence 
of  the  Permanent  Court  the  power  to  frame  the  compromis  re- 
quired by  general  or  special  treaties  of  arbitration  concluded 
or  hereafter  to  be  concluded  by  the  United  States,  and  further 
expressly  declares  that  the  compromis  required  by  any  treaty  of 
arbitration  to  which  the  United  States  may  be  a party  shall  be 
settled  only  by  agreement  between  the  contracting  parties,  unless 
such  treaty  shall  expressly  provide  otherwise. 


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LIST  OF  AUTHORITIES 


Official  Publications  of  the 

International  Bureau  of  the  Permanent  Court  of  Arbitration 

Canevaro  Case:  Protocoles  des  Seances  et  Sentence  du  Tribunal  d’arbitrage 
constitue  en  execution  du  Compromis  signe  entre  ITtalie  et  le  Perou  le  20 
avril  igio.  Differend  au  sujet  de  la  reclamation  des  Freres  Canevaro.  The 
Hague,  Van  Langenhuysen  Brothers,  1912. 

Carthage  and  Manouba  Cases;  Compromis,  Protocoles  des  Seances  et  Sen- 
tences du  Tribunal  d’arbitrage  Franco-Italien.  I.  Affaire  du  "Carthage." 
II.  Affaire  du  "Manouba."  The  Hague,  Van  Langenhuysen  Brothers,  1913. 

Casablanca  Case:  Protccoles  des  Seances  du  Tribunal  arbitral,  constitue  en 
execution  du  Protocole  signe  a Berlin  le  lo  novembre  1908  et  du  Compromis 
du  24  novembre  1908. 

Grisbadarna  Case:  Recueil  des  Comptes  rendus  de  la  visite  des  lieux  et  des 

Protocoles  des  Seances  du  Tribunal  arbitral,  constitue  en  vertu  de  la  Con- 
vention du  14  mars  1908,  pour  juger  la  question  de  la  delimitation  d’une  cer- 
taine  partie  de  la  frontiire  maritime  entre  la  Norvege  et  la  Suede.  The 
Hague,  Van  Langenhuysen  Brothers,  1909. 

Island  of  Timor  Case : Sentence  arbitrate  rendue  en  execution  du  Compromis 
signe  a La  Haye  le  3 avril  1913  entre  les  Pays-Bas  et  le  Portugal  au  sujet  de 
la  delimitation  d’une  partie  de  leurs  possessions  dans  I’lle  de  Timor.  Neu- 
chatel,  Attinger  Brothers,  1914. 

Japanese  House  Tax  Case:  Recueil  des  Actes  et  Protocoles  concernant  le 
Litigc  entre  I’Allemagne,  la  France  et  la  Grande  Bretagne  d’une  part  et  le 
Japan  d’ autre  part.  Tribunal  d’arbitrage  constitue  en  vertu  de  Protocoles 
signes  a Tokyo  le  28  aout  1902  entre  les  Puissances  susmentionnees.  The 
Hague,  Van  Langenhuysen  Brothers,  1905. 

Manouba  Case : See  Carthage  and  Manouba  Cases. 

Muscat  Dhows  Case:  Recueil  des  Actes  rt  Protocoles  concernant  le  Differend 
entre  la  France  et  la  Grande  Bretagne  A propos  des  boutres  de  Mascate, 
soumis  au  Tribunal  d’arbitrage  constitue  en  vertu  du  Compromis  arbitral 
conclu  a Londres  le  13  octobre  1904  entre  les  Puissances  susmentionnees. 
The  Hague,  Van  Langenhuysen  Brothers,  1905. 

North  Atlantic  Coast  Fisheries  Case:  North  Atlantic  Coast  Fisheries  Tribunal 
of  Arbitration  constituted  under  a Special  Agreement  signed  at  Washington, 
January  27,  1909,  betzveen  the  United  States  of  America  and  Great 
Britain.  The  Hague,  Van  Langenhuysen  Brothers,  1910. 

Orinoco  Steamship  Company  Case:  Protocoles  des  Seances  du  Tribunal  d’ar- 
bitrage constitue  en  execution  du  Compromis  signe  entre  les  £tats-Unis 
d’Amerique  et  les  Ftats-Unis  du  Venezuela  le  13  fevrier  1909.  Differend  au 
sujet  d’une  reclamation  de  la  Compagnie  des  bateaux  a vapeur  "Orinoco." 
The  Hague,  Van  Langenhuysen  Brothers,  1910. 

Pious  Fund  Case;  Recueil  des  Actes  et  Protocoles  concernant  le  Litige  du 
"Ponds  Pieux  des  Californies”  soumis  au  Tribunal  d’arbitrage  constitue  en 
vertu  du  Traiie  conclu  a Washington  le  22  mai  1902  entre  les  Btats-Unis 
d’Amerique  et  les  Btats-Unis  Mexicains.  The  Hague,  Van  Langenhuysen 
Brothers,  1902. 


cx 


LIST  OF  AUTHORITIES 


Rapport  du  Conseil  Administratif  de  la  Cour  Permanente  d’Arbitrage  sur  les 
travaux  de  la  Cour,  sur  le  fonctionnement  des  services  administratif s et 
sur  les  depenses  pendant  I’annee  1914.  The  Hague,  Van  Langenhuysen 
Brothers. 

Russian  Indemnity  Case:  Protocoles  des  Seances  et  Sentence  du  Tribunal  d’ar- 
bitrage  constitue  en  vertu  du  Compromis  d’arbitrage  signe  d Constantinople 
entre  la  Russie  et  la  Turquie  le  22  juillet/4  aout  1910.  Litige  Russo-Turc 
relatif  aux  dommages-interets  reclames  par  la  Russie  pour  le  retard  apporte 
dans  le  payement  des  indemnites  dues  aux  particuliers  russes  Uses  par  la 
guerre  de  1877-1878.  The  Hague,  Van  Langenhuysen  Brothers,  1912. 

Savarkar  Case:  Protocoles  des  Seances  et  Sentence  du  Tribunal  d’arbitrage  con- 
stitue en  e.vecution  du  Compromis  signe  entre  la  France  et  la  Grande-Bre- 
tagne  le  25  octobre  1910.  Differend  au  sujet  de  I’arrestation  et  de  la  reinte- 
gration a bord  du  paquebot  “Morea”  le  8 juillet  1910,  d Marseille  du  sujet 
britannique  (British  Indian)  Savarkar.  The  Hague,  Van  Langenhuysen 
Brothers,  1911. 

Tavignano,  Camouna  and  Gaulois  Cases:  (/)  Commission  Internationale  d’En- 
quete  constitue  d Malte  en  vertu  de  la  convention  d’enquete  signee  d Rome 
entre  la  France  et  I’ltalie,  le  20  mai  1912.  Incidents  du  vapeur  Franqais 
"Tavignano”  et  des  Mahonnes  "Camouna”  et  "Gaulois”  arretes  et  visites  par 
les  contre-torpilleurs  "Fulmine”  et  "Canopo”  de  la  marine  royale  Italienne. 
Documents  et  proces-verbaux.  (2)  Affaire  de  la  Capture  et  de  la  Saisie  mo- 
mentanee  du  Vapeur  postal  fran^ais  "Tavignano”  et  des  coups  de  canon  tires 
sur  les  Mahonnes  tunisiennes  "Kamouna”  et  "Gaulois”  Par  les  Forces 
navales  italiennes.  Memoire  presente  au  nom  du  Gouvernement  de  la  Ri- 
publique  frangais. 

Venezuelan  Preferential  Case:  Recueil  des  Actes  et  Protocoles  concernant  le 
Litige  entre  I’Allemagne,  I'Angleterre  et  I’ltalie  d’une  part  et  le  Venezuela 
d’autre  part.  Tribunal  d’arbitrage  constitue  en  vertu  des  protocoles  signSs 
d Washington,  le  7 mai  1903  entre  les  Puissances  susmentionnees.  The 
Hague,  Van  Langenhuysen  Brothers,  1904. 

Miscellaneous 

American  Journal  of  International  Law.  New  York,  Baker,  Voorhis  and 
Company. 

American  State  Papers,  Foreign  Relations.  Documents,  Legislative  and  Execu- 
tive, of  the  Congress  of  the  United  States  [1789-1833].  6 vols. 

Annals  of  the  Congress  of  the  United  States.  First  to  Eighteenth  Congress.  47 
vols.,  Washington,  D.  C. 

Annuaire  de  I’Institut  de  droit  international,  vol.  25,  1912. 

Boletin  del  Ministerio  de  Relaciones  E.rteriores  (Peru)  No.  xxxv. 

British  and  Foreign  State  Papers. 

Conference  international  de  la  paix.  La  Haye,  18  mai-29  juillet  1899.  Minis- 
tire  des  affaires  etrangcres.  New  ed.  The  Hague,  Martinus  Nijhoff,  1907. 
(Cited  Proeds-verbaux.) 

Deu.vidme  conference  international  de  la  paix.  La  Haye,  15  juin-i8  octobre 
1907.  Actes  et  documents.  Ministere  des  affaires  etrangeres.  The  Hague, 
National  print,  1907.  (Cited  Actes  et  documents.) 

Foreign  Relations  of  the  United  States.  Washington,  Government  Printing 

C3fficc. 


LIST  OF  AUTHORITIES 


CXI 


Hague  Conventions  and  Declarations  of  1899  and  1907  accompanied  by  Tables 
of  Signatures.  Ratifications  and  Adhesions  of  the  Various  Powers  and  Texts 
of  Reservations.  Edited  by  James  Brown  Scott,  New  York,  Oxford  Uni- 
versity Press,  American  Branch,  2d  ed.,  1915. 

Lange,  Chr.-L.  Union  Interparlementaire . Resolutions  des  Conferences  et 
Decisions  principales  du  Conseil.  2d.  ed.,  1911. 

Memorial  Diplomatique,  Le.  Paris. 

Malloy,  William  M.  Treaties,  Conventions,  International  Acts,  Protocols  and 
Agreements  between  the  United  States  of  America  and  Other  Powers, 
1776-1909.  2 vols.  Washington,  Government  Printing  Office,  1910. 

Martens,  G.  Fr.  de.  Nouveau  Recueil  General  de  Traites  et  Autres  Actes  rela-' 
tives  aux  Rapports  de  Droit  International.  Leipsic. 

Official  records  of  the  Imperial  German  Embassy  at  Washington,  D.  C. 

Pellew,  George.  John  Jay. 

Proceedings  of  Fourth  National  Conference  of  the  American  Society  for  Judicial 
Settlement  of  International  Disputes,  1913.  Baltimore,  Williams  and  Wilkins 
Company,  1914. 

Report  of  Jackson  H.  Ralston,  Agent  of  the  United  States  and  of  Counsel,  in  the 
Matter  of  the  Case  of  the  Pious  Fund  of  the  Calif ornias.  Heard  before  a 
Tribunal  of  the  Permanent  Court  of  Arbitration  under  the  Hague  Conven- 
tion of  1899,  Sitting  at  The  Hague,  September  15,  1902,  to  October  14, 
1902,  with  Pleadings,  Appendix,  Briefs,  and  Record  of  the  Entire  Proceed- 
ings. Washington,  Government  Printing  Office,  1902. 

Statutes  at  J^arge  of  the  United  States  of  America. 

Sweden.  Royal  Resolution,  No.  70,  1904. 

United  States  and  Me.xican  Claims  Commission,  Opinions.  (MS.  Department 
of  State.) 

United  States  and  Venezuela  Arbitration  at  The  Hague,  Appendix  to  the  Case 
of  the  United  States.  2 vols.  Washington,  Government  Printing  Office, 
1910, 

United  States  Treaty  Series. 

Wharton,  Francis.  Diplomatic  Correspondence  of  the  American  Revolution, 
Washington,  Government  Printing  Office. 

Yale  Law  Journal,  New  Haven,  Conn. 


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ARBITRATIONS 

BEFORE  THE 


HAGUE  TRIBUNALS 


THE  PIOUS  FUND  CASE 

between 

MEXICO  and  THE  UNITED  STATES 
Decided  October  14,  1902 

Syllabus 

The  case  on  trial  was  known  as  the  “Pious  Fund  of  the  Califor- 
nias.”  It  originated  in  donations  made  by  Spanish  subjects  during 
the  latter  part  of  the  seventeenth  and  the  first  half  of  the  eighteenth 
centuries  for  the  spread  of  the  Roman  Catholic  faith  in  the  Cali- 
fornias.  These  gifts,  amounting  approximately  to  ^1,700,000,  were  v 
made  in  trust  to  the  Society,.oi . Jesps  for  the  execution  of  the  pious  \ 
wish  of  The  founders.  The  Jesuits  accepted  the  trust  and  discharged  J 
its  duties  until  they  were  disabled  from  its  further  administration  by>y 
their  expulsion  in  1767  from  the  Spanish  dominions  by  the  King  of 
Spain  and  by  the  suppression  of  the  order  by  the  Pope  in  1773.  The 
Crown  of  Spain  took  possession  of  and  administered  the  trust  for 
the  uses  declared  by  the  donors  until  Mexico,  after  her  independence 
was  achieved,  succeeded  to  the  administration  of  the  trust.  Finally, 
in  1842,  President  Santa  Anna  ordered  the  properties  to  be  sold,  that 
the  proceeds  thereof  be  incorporated  into  the  national  treasury,  and 
that  six  per  cent  annual  interest  on  the  capitalization  of  the  property 
should  be  paid  and  devoted  to  the  carrying  out  of  the  intention  of  the 
donors  in  the  conversion  and  civilization  of  the  savages. 

Upper  California  having  been  ceded  to  the  United  States  in  1848  by 
the  treaty  of  Guadalupe  Hidalgo,  the  Mexican  Government  refused 
to  pay  to  the  prelates  of  the  Church  in  Upper  California  any  share  of 
the  interest  which  accrued  after  the  ratification  of  the  treaty.  The 
latter  presented  their  claims  therefor  to  the  Department  of  State  and 
requested  the  interposition  of  the  Government.  A mixed  commission 
.a.  for  the  settlement  of  the  cross  claims  between  the  two  Governments  j 

^ was  formed  under  the  Convention  of  July  4,  1868.^  On  the  presenta-  ' 

tion  and  hearing  of  the  claim  the  United  States  and  Mexican  commis- 
sioners divided  in  opinion.  The  cage  was  accordingly  referred  to  the..  . 
umpire,  Sir  E^ia^arj,.„Tborntnn.  .who  rendered  an  award^,  in  favor  .of 
— ~tTie  U nite3~Btates -for-  twenty-Qne...annuities~of~^T3 J)50.99  as  the  / 

equitable  proportion  to  which  the  prelates  of  Upper  California  were 
entitled  of  the  interest  accrued  on  the  entire  fund  from  the  making  of 
the  treaty  of  peace  down  to  February  2,  1869.  The  Mexican  Govern- 
ment paid  the  award,  but,  asserting  that  the  claim  was  extinguished, 
reftHeiTto  make  any, further  payments  of  interest  for  the  benefit  of 
the  Church  in'  Upper  California.  Again  the  prelates  appealed  to  the 


^Post,  p.  12.  ^Post,  p.  48. 


2 


THE  HAGUE  COURT  REPORTS 


Department  of  State  for  support,  and  in  1898  active  diplomatic  dis- 
cussions between  the  two  Governments  as  to  the  merits  of  the  claim 
w'ere  begim  and  carried  fonvard  until  they  culminated,  on  May  22, 

^1902,  in  a formal  agreement^  to  refer  the  case  to  the  determination  .of 
the  Hague  tribunal,  to  be  composed  of  Ave  members,  none  of  whom 
were  to  be^ativ^S'-or'CifizenF^Tliie  contracting  Parties.  Only  two 
issues  were  presented  by  the  protocol,  namely:  1.  Is  the  case,  as  ■ ; 

consequence  of  the  decision  of  Sir  Edward  Thornton,  within  the  gov-  - 

eming  principle  of  res  judicata?  2.  If  not,  is  the  claim  just?  The  / 
tribunal  was  authorized  to  render  whatever  judgment  might  be  found'  * 
just  and  equitable. 

As  judges  the  United  States  selected  Professor  Martens  of  Russia^ 
and  Sir  Edward  Fry  of  Great  Britain;  Mexico  chose  Dr.  Asser  and 
Jonkheer  de  Savornin  Lohman  of  Holland;  and  these  judges  selected 
as-president  of  the  tribunal.  Dr.  Matzen  of  Denmark.  All  were  mem- 
bers of  the  Permanent  Court  of  Arbitration.  The  sessions  of  the 
tribunal  began  September  15,  1902,  and  ended  October  1,  1902. 

The  material  part  of  the  unanimous  award  of  the  tribunal  in  favor 
of  the  United  States,  rendered  on  October  14,  1902,  was  as  follows : 

1.  That  the  said  claim  of  the  United  States  of  America  for  the 
benefit  of  the  Archbishop  of  San  Francisco  and  of  the  Bishop  of 
Monterey  is  governed  by  the  principle  of  res  judicata  by  virtue  of  the 
arbitral  sentence  of  Sir  Edward  Thornton,  of  November  11,  1875; 
amended  by  him,  October  24,  1876. 

2.  That  conformably  to  this  arbitral  sentence  the  Government  of 
the  Republic  of  the  United  Mexican  States  must  pay  to  the  Govern- 
ment of  the  United  States  of  America  the  sum  of  $1,420,682.67  Mexi-  ,, 
can,  in  money  having  legal  currency  in  Mexico,  within  the  period 
fixed  by  Article  10  of  the  protocol  of  Washington  of  May  22,  1902. 

This  sum  of  $1,420,682.67  will  totally  extinguish  the  annuities  ac- 
crued and  not  paid  by  the  Government  of  the  Mexican  Republic — 
that  is  to  say,  the  annuity  of  $43,050.99  Mexican  from  February  2, 

1869,  to  February  2,  1902. 

3.  The  Government  of  the  Republic  of  the  United  Mexican  States 
shall  pay  to  the  Government  of  the  United  States  of  America  on 
February  2,  1903,  and  each  following  year  on  the  same  date  of  Feb- 
ruary 2,  perpetually,  the  annuity  of  $43,050.99  Mexican,  in  money 
having  legal  currency  in  Mexico.* 


^Post,  p.  7. 


^Post,  p.  6. 


THE  PIOUS  FUND  CASE 


3 


AWARD  OF  THE  TRIBUNAL  ' ' 

Award  of  the  tribunal  of  arbitration  constituted  in  virtue  of  the 
protocol  signed  at  Washington,  May  22,  igo2,  between  the 
United  States  and  Mexico  for  the  adjustment  of  certain  conten- 
tions arising  under  what  is  known  as  the  “Pious  Fund  of  the 
Calif orniasP — The  Hague,  October  14,  igo2d 

The  tribunal  of  arbitration  constituted  by  virtue  of  the  treaty 
concluded  at  Washington,  May  22,  1902,^  between  the  United  States 
of  America  and  the  United  Mexican  States: 

Whereas,  by  a comproniis  (agreement  of  arbitration)  prepared 
under  the  form  of  protocol  between  the  United  States  of  America 
and  the  United  Mexican  States,  signed  at  Washington,  May  22, 
1902,  it  was  agreed  and  determined  that  the  differences  which  ex- 
isted between  the  United  States  of  America  and  the  United  Mexican 
States,  relative  to  the  subject  of  the  “Pious  Fund  of  the  Californias,” 
the  annuities  of  which  were  claimed  by  the  United  States  of  Amer- 
ica for  the  benefit  of  the  Archbishop  of  San  Francisco  and  the 
Bishop  of  Monterey,  from  the  Government  of  the  Mexican  Repub- 
lic, should  be  submitted  to  a tribunal  of  arbitration,  constituted  upon 
the  basis  of  the  Convention  for  the  pacific  settlement  of  international 
disputes,  signed  at  The  Hague,  July  29,  1899,  which  should  be 
composed  in  the  following  manner,  that  is  to  say : 

The  ^^resident  oi  the  United  States  of  America  should  designate 
two  arbitrators  (non-nationms),  and  the  President  of  the  United 
Mexican  States  equally  two  arbitrators  (non-nationals) ; these  four 
arbitrators  should^mefiC-September  1,  1902,  at.  The  Hague,  for  the 
purpose  of  nominating  the  umpire,  who  at  the  same  time  should  be 
of  right  the  president  of  the  tribunal  of  arbitration. 

Whereas  the  President  of  the  United  States  of  America  named 
as  arbitrators : 

The  Right  Hon.  Sir  Edward  Fry,  LL.D.,  former  member  of 
the  Court  of  Appeals,  member  of  the  Privy  Council  of  His  Britan- 
nic Majesty,  member  of  the  Permanent  Court  of  Arbitration;  and 
His  Excellency  Mr.  de  Martens,  LL.D.,  Privy  Councilor,  member 
of  the  Council  of  the  Imperial  Ministry  of  Foreign  Affairs  of  Rus- 

^Report  of  Jackson  H.  Ralston,  Agent  of  the  United  States  and  of  Counsel, 
in  the  matter  of  the  Case  of  the  Pious  Fund  of  the  Californias,  etc.,  pt.  1,  p.  13. 
For  the  original  French  text,  see  Appendix,  p.  429. 

^Post,  p.  7. 


4 


THE  HAGUE  COURT  REPORTS 


sia,  member  of  the  Institute  of  France,  member  of  the  Permanent 
Court  of  Arbitration. 

Whereas  the  President  of  the  United  Mexican  States  named  as 
arbitrators : 

Mr.  T.  M.  C.  Asser,  LL.D.,  member  of  the  Council  of  State  of 
the  Netherlands,  former  professor  at  the  University  of  Amsterdam, 
member  of  the  Permanent  Court  of  Arbitration ; and 

Jonkheer  A.  F.  de  Savomin  Lohman,  LL.D.,  former  Minister 
of  the  Interior  of  the  Netherlands,  former  professor  at  the  Free 
L^niversity  at  Amsterdam,  member  of  the  second  chamber  of  the 
States-General,  member  of  the  Permanent  Court  of  Arbitration; 
which  arbitrators  at  their  meeting,  September  1,  1902,  elected,  con- 
formably to  Articles  32-34  of  the  Convention  of  The  Hague  of 
July  29,  1899,  as  umpire  and  president  of  right  of  the  tribunal  of 
arbitration ; 

Mr.  Henning  Matzen,  LL.D.,  professor  at  the  University  of 
Copenhagen,  Counselor  Extraordinary  to  the  Supreme  Court,  Presi- 
dent of  the  Landsthing,  member  of  the  Permanent  Court  of  Arbi- 
tration ; and 

Whereas,  by  virtue  of  the  protocol  of  Washington  of  May  22, 
1902,  the  above-named  arbitrators,  united  in  tribunal  of  arbitration, 
were  required  to  decide : 

1.  If  the  said  claim  of  the  United  States  of  America  for  the 
benefit  of  the  Archbishop  of  San  Francisco  and  the  Bishop  of 
Monterey  was  within  the  governing  principle  of  res  judicata  by 
virtue  of  the  arbitral  sentence  of  November  11,  1875,  pronounced 
by  Sir  Edward  Thornton,  as  umpire^; 

2.  If  not,  whether  the  said  claim  was  just,  with  power  to  render 
such  judgment  as  would  seem  to  them  just  and  equitable. 

Whereas,  the  above-named  arbitrators  having  examined  with 
impartiality  and  care  all  the  documents  and  papers  presented  to 
the  tribunal  of  arbitration  by  the  agents  of  the  United  States  of 
America  and  of  the  United  Mexican  States,  and  having  heard  with 
the  greatest  attention  the  oral  arguments  presented  before  the 
tribunal  by  the  agents  and  the  counsel  of  the  two  parties  in  litiga- 
tion; 


^Post,  p.  48. 


THE  PIOUS  FUND  CASE 


5 


Considering  that  the  litigation  submitted  to  the  decision  of  the 
tribunal  of  arbitration  consists  in  a conflict  between  the  United 
States  of  America  and  the  United  Mexican  States  which  can  only 
be  decided  upon  the  basis  of  international  treaties  and  the  principles 
of  international  law; 

Considering  that  the  international  treaties  concluded  from  the 
year  1848  to  the  compromis  of  May  22,  1902,  between  the  two 
Powers  in  litigation  manifest  the  eminently  international  character^ 
of  this  conflict; 

Considering  that  all  the  parts  of  the  judgment  or  the  decree  con- 
cerning the  points  debated  in  the  litigation  enlighten  and  mutually 
supplement  each  other,  and  that  they  all  serve  to  render  precise  the 
meaning  and  the  bearing  of  the  dispositif  (decisory  part  of  the  judg- 
ment) and  to  determine  the  points  upon  which  there  is  res  judicata 
and  which  thereafter  can  not  be  put  in  question; 

Considering  that  this  rule  applies  not  only  to  the  judgments  of 
tribunals  created  by  the  State,  but  equally  to  arbitral  sentences  ren- 
dered within  the  limits  of  the  jurisdiction  fixed  by  the  compromis; 

Considering  that  this  same  principle  should  for  a still  stronger 
reason  be  applied  to  international  arbitration; 

Considering  that  the  Convention  of  July  4,  1868,^  concluded  be- 
tween the  two  States  in  litigation,  had  accorded  to  the  mixed  com- 
mission named  by  these  States,  as  well  as  to  the  umpire  to  be  even- 
tually designated,  the  right  to  pass  upon  their  own  jurisdiction; 

Considering  that  in  the  litigation  submitted  to  the  decision  of  the 
tribunal  of  arbitration,  by  virtue  of  the  compromis  of  May  22,  1902, 
there  is  not  only  identity  of  parties  to  the  suit,  but  also  identity  of 
subject-matter,  compared  with  the  arbitral  sentence  of  Sir  Edward 
Thornton,  as  umpire,  in  1875,  and  amended  by  him,  October  24, 
1876^; 

Considering  that  the  Government  of  the  United  Mexican  States 
conscientiously  executed  the  arbitral  sentence  of  1875  and  1876  by 
paying  the  annuities  adjudged  by  the  umpire; 

Considering  that  since  1869  thirty-three  annuities  have  not  been 
paid  by  the  Government  of  the  United  Mexican  States  to  the  Gov- 
ernment of  the  United  States  of  America,  and  that  the  rules  of 
prescription,  belonging  exclusively  to  the  domain  of  civil  law,  can 


^Post,  p.  12.  ’‘Post,  p.  53. 


6 


THE  HAGUE  COURT  REPORTS 


not  be  applied  to  the  present  dispute  between  the  two  States  in  litiga- 
tion; 

/ Considering,  so  far  as  the  money  is  concerned  in  which  the  annual 
payment  should  take  place,  that  the  silver  dollar  having  legal  cur- 
rency in  Mexico,  payment  in  gold  can  not  be  exacted  except  by  virtue 
of  an  express  stipulation; 

Considering  that  in  the  present  instance  such  stipulation  not  ex- 
isting, the  party  defendant  has  the  right  to  free  itself  by  paying  in 
silver;  that  with  relation  to  this  point  the  sentence  of  Sir  Edward 
Thornton  has  not  the  force  of  res  judicata,  except  for  the  twenty-one 
annuities  with  regard  to  which  the  empire  decided  that  the  payment 
should  take  place  in  Mexican  gold  dollars,  because  question  of  the 
mode  of  payment  does  not  relate  to  the  basis  of  the  right  in  litiga- 
tion, but  only  to  the  execution  of  the  sentence; 

Considering  that  according  to  Article  10  of  the  protocol  of  Wash- 
ington of  May  22,  1902,  the  present  tribunal  of  arbitration  must 
determine,  in  case  of  an  award  against  the  Republic  of  Mexico,  in 
what  money  payment  must  take  place ; 

For  these  reasons  the  tribunal  of  arbitration  decides  and  unani- 
mously pronounces  as  follows: 

1.  That  the  said  claim  of  the  United  States  of  America  for  the 
benefit  of  the  Archbishop  of  San  Francisco  and  of  the  Bishop  of 
Monterey  is  governed  by  the  principle  of  res  judicata  by  virtue  of 
the  arbitral  sentence  of  Sir  Edward  Thornton,  of  November  11, 
1875 ; amended  by  him,  October  24,  1876. 

2.  That  conformably  to  this  arbitral  sentence  the  Government 
of  the  Republic  of  the  United  Mexican  States  must  pay  to  the  Gov- 
ernment of  the  United  States  of  America  the  sum  of  $1,420,682.67 
Mexican,  in  money  having  legal  currency  in  Mexico,  within  the 
period  fixed  by  Article  10  of  the  protocol  of  Washington  of  May 
22,  1902. 

This  sum  of  $1,420,682.67  will  totally  extinguish  the  annuities 
accrued  and  not  paid  by  the  Government  of  the  Mexican  Republic — 
that  is  to  say,  the  annuity  of  $43,050.99  Mexican  from  February  2, 
1869,  to  February  2,  1902. 

3.  The  Government  of  the  Republic  of  the  United  Mexican  States 
shall  pay  to  the  Government  of  the  United  States  of  America  on 
February  2,  1903,  and  each  following  year  on  the  same  date  of 


THE  PIOUS  FUND  CASE 


7 


I''ebruary  2,  perpetually,  the  annuity  of  $43,050.99  Mexican,  in 
money  having  legal  currency  in  Mexico. 

Done  at  The  Hague  in  the  hotel  of  the  Permanent  Court  of  Arbi- 
tration in  triplicate  original,  October  14,  1902. 

Henning  Matzen 

Edw.  Fry 

Martens 

T.  M.  C.  Asser 

A.  F.  DE  Savornin  Lohman 


AGREEMENT  FOR  ARBITRATION 

Protocol  of  an  Agreement  between  the  United  States  of  America  and 
the  Republic  of  Mexico  for  the  adjustment  of  certain  contentions 
arising  under  what  is  known  as  the  ‘‘Pious  Fund  of  the  Califor- 
nios.”— Signed  at  Washington,  May  22,  igo2} 

Whereas,  under  and  by  virtue  of  the  provisions  of  a convention 
entered  into  between  the  high  contracting  Parties  above-named,  of 
date  July  4,  1868,^  and  subsequent  conventions  supplementary  thereto, “ 
there  was  submitted  to  the  mixed  commission  provided  for  by  said 
convention  a certain  claim  advanced  by  and  on  behalf  of  the  prelates 
of  the  Roman  Catholic  Church  of  California  against  the  Republic  of 
Mexico  for  an  annual  interest  upon  a certain  fund  known  as  “The 
Pious  Fund  of  the  Californias,”  which  interest  was  said  to  have  ac- 
crued between  February  2,  1848,  the  date  of  the  signature  of  the  treaty 
of  Guadalupe  Hidalgo,  and  February  1,  1869,  the  date  of  the  exchange 
of  the  ratifications  of  said  convention  above  referred  to;  and 

Whereas,  said  mixed  commission,  after  considering  said  claim,  the 
same  being  designated  as  No.  493  upon  its  docket,  and  entitled  Thad- 
deus  Amat,  Roman  Catholic  Bishop  of  Monterey,  a corporation  sole, 
and  Joseph  S.  Alemany,  Roman  Catholic  Bishop  of  San  Francisco,  a 
corporation  sole,  against  the  Republic  of  Mexico,  adjudged  the  same 
adversely  to  the  Republic  of  Mexico  and  in  favor  of  said  claimants, 
and  made  an  award  thereon  of  nine  hundred  and  four  thousand,  seven 
hundred  and  99/100  (904,700.99)  dollars;  the  same,  as  expressed  in 
the  findings  of  said  court,  being  for  twenty-one  years’  interest  of  the 

W.  S.  Statutes  at  Large,  vol.  32,  p.  1916.  For  the  Spanish  text,  see  Appendix, 
p.  432. 

'■‘Post,  p.  12. 

3 Supplementary  conventions  not  printed  as  they  have  no  bearing  on  the 
Pious  Fund  Case. 


8 


THE  HAGUE  COURT  REPORTS 


annual  amount  of  forty-three  thousand  and  eighty  and  99/100 
(43,080.99)  dollars  upon  seven  himdred  and  eighteen  thousand  and 
sixteen  and  50/100  (718,016.50)  dollars,  said  award  being  in  Mexican 
gold  dollars,  and  the  said  amount  of  nine  hundred  and  four  thousand, 
seven  hundred  and  99/100  (904,700.99)  dollars  having  been  fully 
paid  and  discharged  in  accordance  with  the  terms  of  said  conventions ; 
and 

Whereas,  the  United  States  of  America  on  behalf  of  said  Roman 
Catholic  Bishops,  above-named,  and  their  successors  in  title  and  inter- 
est, have  since  such  award  claimed  from  Mexico  further  instalments 
of  said  interest,  and  have  insisted  that  the  said  claim  was  conclusively 
established,  and  its  amount  fixed  as  against  Mexico  and  in  favor  of 
said  original  claimants  and  their  successors  in  title  and  interest  under 
the  said  first-mentioned  convention  of  1868  by  force  of  the  said  award 
as  res  judicata;  and  have  further  contended  that  apart  from  such 
former  award  their  claim  aga'iT^jyTexirn  was  just,  both  of  which 
propositions  are  conTrdverted~and  denied  by  the  Republic  of  Mexico, 
and  the  high  contracting  Parties  hereto,  animated  by  a strong  desire 
that  the  dispute  so  arising  may  be  amicably,  satisfactorily  and  justly 
settled,  have  agreed  to  submit  said  controversy  to  the  determination 
of  arbitrators,  who  shall,  unless  otherwise  herein  expressed,  be  con- 
trolled b}~fB5  provisions  of  the  international  Convention  for  the  pacific 
settlement  of  international  disputes,  commonly  known  as  the  Hague 
Convention,  and  which  arbitration  shall  have  power  to  determine: 

1.  If  said  claim,  as  a consequence  of  the  former  decision,  is  within 
f the  governing  principle  of  res  judicata;  and 

2.  If  not,  whether  the  same  be  just. 

And  to  render  such  judgment  or  award  as  may  be  meet  and  proper 
under  all  the  circumstances  of  the  case. 

It  is  therefore  agreed  by  and  between  the  United  States  of  America, 
through  their  representative,  John  Hay,  Secretary  of  State  of  the 
United  States  of  America,  and  the  Republic  of  Mexico,  through  its 
representative,  Manuel  de  Azpiroz,  Ambassador  Extraordinary  and 
Plenipotentiary  to  the  United  States  of  America  for  the  Republic  of 
Mexico  as  follows: 

1 

That  the  said  contentions  be  referred  to  the  special  tribunal  herein- 
after provided,  for  examination,  determination  and  award. 


THE  PIOUS  FUND  CASE 


9 


2 

The  special  tribunal  hereby  constituted  shall  consist  of  four  arbitra- 
tors (two  to  be  named  by  each  of  the  high  contracting  Parties)  and  an 
umpire  to  be  selected  in  accordance  with  the  provisions  of  the  Hague 
Convention.  The  arbitrators  to  be  named  hereunder  shall  be  signified 
by  each  of  the  high  contracting  Parties  to  the  other  within  sixty  days 
after  the  date  of  this  protocol.  None  of  those  so  named  shall  be  a 
native  or  citizen  of  the  parties  hereto.  Judgment  may  be  rendered 
by  a majority  of  said  court. 

All  vacancies  occurring  among  the  members  of  said  court  because 
of  death,  retirement  or  disability  from  any  cause  before  a decision 
shall  be  reached,  shall  be  filled  in  accordance  with  the  method  of  ap- 
pointment of  the  member  affected  as  provided  by  said  Hague  Con- 
vention, and  if  occurring  after  said  court  shall  have  first  assembled, 
will  authorize  in  the  judgment  of  the  court  an  extension  of  time  for 
hearing  or  judgment,  as  the  case  may  be,  not  exceeding  thirty  days. 

3 

All  pleadings,  testimony,  proofs,  arguments  of  counsel  and  findings 
or  awards  of  commissioners  or  umpire,  filed  before  or  arrived  at  by 
the  mixed  commission  above  referred  to,  are  to  be  placed  in  evidence 
before  the  court  hereinbefore  provided  for,  together  with  all  corre- 
spondence between  the  two  cotmtries  relating  to  the  subject-matter 
involved  in  this  arbitration;  originals  or  copies  thereof  duly  certified 
by  the  Departments  of  State  of  the  high  contracting  Parties  being 
presented  to  said  new  tribunal.  Where  printed  books  are  referred  to 
in  evidence  by  either  party,  the  party  offering  the  same  shall  specify 
volume,  edition  and  page  of  the  portion  desired  to  be  read,  and  shall 
furnish  the  court  in  print  the  extracts  relied  upon ; their  accuracy  being 
attested  by  affidavit.  If  the  original  work  is  not  already  on  file  as  a 
portion  of  the  record  of  the  former  mixed  commission,  the  book  itself 
shall  be  placed  at  the  disposal  of  the  opposite  party  in  the  respective 
offices  of  the  Secretary  of  State  or  of  the  Mexican  Ambassador  in 
Washington,  as  the  case  may  be,  thirty  days  before  the  meeting  of  the 
tribunal  herein  provided  for. 

4 

Either  party  may  demand  from  the  other  the  discovery  of  any  fact 
or  of  any  document  deemed  to  be  or  to  contain  material  evidence  for 
the  party  asking  it;  the  document  desired  to  be  described  with  suffi- 


10 


THE  HAGUE  COURT  REPORTS 


cient  accuracy  for  identification,  and  the  demanded  discovery  shall  be 
made  by  delivering  a statement  of  the  fact  or  by  depositing  a copy 
of  such  document  (certified  by  its  lawful  custodian,  if  it  be  a public 
document,  and  verified  as  such  by  the  possessor,  if  a private  one), 
and  the  opposite  party  shall  be  given  the  opportunity  to  examine  the 
original  in  the  City  of  Washington  at  the  Department  of  State,  or  at 
the  office  of  the  Mexican  Ambassador,  as  the  case  may  be.  If  notice 
of  the  desired  discovery  be  given  too  late  to  be  answered  ten  days 
before  the  tribunal  herein  provided  for  shall  sit  for  hearing,  then  the 
answer  desired  thereto  shall  be  filed  with  or  documents  produced 
before  the  court  herein  provided  for  as  speedily  as  possible. 

5 

Any  oral  testimony  additional  to  that  in  the  record  of  the  former 
arbitration  may  be  taken  by  either  party  before  any  judge,  or  clerk 
of  court  of  record,  or  any  notary  public,  in  the  manner  and  with  the 
precautions  and  conditions  prescribed  for  that  purpose  in  the  rules 
of  the  joint  commission  of  the  United  States  of  America,  and  the  Re- 
public of  Mexico,  as  ordered  and  adopted  by  that  tribunal  August  10, 
1869,  and  so  far  as  the  same  may  be  applicable.  The  testimony  when 
reduced  to  writing,  signed  by  the  witness,  and  authenticated  by  the 
officer  before  whom  the  same  is  taken,  shall  be  sealed  up,  addressed  to 
the  court  constituted  hereby,  and  deposited  so  sealed  up  in  the  Depart- 
ment of  State  of  the  United  States,  or  in  the  Department  of  Foreign 
Relations  of  Mexico  to  be  delivered  to  the  court  herein  provided  for 
when  the  same  shall  convene. 

6 

Within  sixty  days  from  the  date  hereof  the  United  States  of 
America,  through  their  agent  or  counsel,  shall  prepare  and  furnish 
to  the  Department  of  State  aforesaid,  a memorial  in  print  of  the  origin 
and  amount  of  their  claim,  accompanied  by  references  to  printed 
books,  and  to  such  portions  of  the  proofs  or  parts  of  the  record  of  the 
former  arbitration,  as  they  rely  on  in  support  of  their  claim,  deliver- 
ing copies  of  the  same  to  the  Embassy  of  the  Republic  of  Mexico  in 
Washington,  for  the  use  of  the  agent  or  counsel  of  Mexico. 

7 

Within  forty  days  after  the  delivery  thereof  to  the  Mexican  Em- 
bassy the  agent  or  counsel  for  the  Republic  of  Mexico  shall  deliver 


THE  PIOUS  FUND  CASE 


11 


to  the  Department  of  State  of  the  United  States  of  America  in  the 
same  manner  and  with  like  references  a statement  of  its  allegations 
and  grounds  of  opposition  to  said  claim. 

8 

The  provisions  of  paragraphs  6 and  7 shall  not  operate  to  prevent 
the  agents  or  counsel  for  the  parties  hereto  from  relying  at  the  hearing 
or  submission  upon  any  documentary  or  other  evidence  which  may 
have  become  open  to  their  investigation  and  examination  at  a period 
subsequent  to  the  times  provided  for  service  of  memorial  and  answer. 


9 


The  first  meeting  of  the  arbitral  court  hereinbefore  provided  for 
shall  take  place  for  the  selection  of  an  umpire  on  September  1,  1902, 
at  The  Hague  in  the  quarters  which  may  be  provided  for  such  purpose 
by  the  International  Bureau  at  The  Hag^e,  constituted  by  virtue  of 
the  Hague  Convention  hereinbefore  referred  to,  and  for  the  com- 
mencement of  its  hearings  September  15,  1902,  is  designated,  or,  if  an 
umpire  may  not  be  selected  by  said  date,  then  as  soon  as  possible 
thereafter,  and  not  later  than  October  15,  1902,  at  which  time  and 
place  and  at  such  other  times  as  the  court  may  set  (and  at  Brussels 
if  the  court  should  determine  not  to  sit  at  The  Hague)  explanations 
and  arguments  shall  be  heard  or  presented  as  the  court  may  deter- 
mine, and  the  cause  be  submitted.  The  submission  of  all  arguments, 
statements  of  facts,  and  documents  shall  be  concluded  within  thirty 
days  after  the  time  provided  for  the  meeting  of  the  court  for  hearing 
(unless  the  court  shall  order  an  extension  of  not  to  exceed  thirty  days) 
and  its  decision  and  award  announced  within  thirty  days  after  such 
conclusion,  and  certified  copies  thereof  delivered  to  the  agents  or 
counsel  of  the  respective  parties  and  forwarded  to  the  Secretary  of 
State  of  the  United  States  and  the  Mexican  Ambassador  at  Washing- 
ton, as  well  as  filed  with  the  Netherland  Minister  for  Foreign  Affairs. 


1 


10 

Should  the  decision  and  award  of  the  tribunal  be  against  the  Re-\ 
public  of  Mexico,  the  findings  shall  state  the  amount  and  in  what  cur- 
rency the  same  shall  be  payable,  and  shall  be  for  such  amount  as  under 
the  contentions  and  evidence  may  be  just.  Such  final  award,  if  any,  j 
shall  be  paid  to  the  Secretary  of  State  of  the  United  States  of  America, ' 
within  eight  months  from  the  date  of  its  making. 


12 


THE  HAGUE  COURT  REPORTS 


11 

The  agents  and  counsel  for  the  respective  parties  may  stipulate  for 
the  admission  of  any  facts,  and  such  stipulation,  duly  signed,  shall  be 
accepted  as  proof  thereof. 

/ 

Each  of  the  parties  hereto  shall  pay  its  own  expenses,  and  one-half 
j of  the  expenses  of  the  arbitration,  including  the  pay  of  the  arbitrators ; 
but  such  costs  shall  not  constitute  any  part  of  the  judgment. 

13 

Revision  shall  be  permitted  as  provided  in  Article  55  of  the  Hague 
Convention,  demand  for  revision  being  made  within  eight  days  after 
announcement  of  the  award.  Proofs  upon  such  demand  shall  be  sub- 
mitted within  ten  days  after  revision  be  allowed  (revision  only  being 
granted,  if  at  all,  within  five  days  after  demand  therefor)  and  counter- 
proofs within  the  following  ten  days,  unless  further  time  be  granted 
by  the  court.  Arguments  shall  be  submitted  within  ten  days  after  the 
presentation  of  all  proofs,  and  a judgment  or  award  given  within  ten 
days  thereafter.  All  provisions  applicable  to  the  original  judgment  or 
award  shall  apply  as  far  as  possible  to  the  judgment  or  award  on  re- 
vision. Provided,  that  all  proceedings  on  revision  shall  be  in  the 
French  language. 

14 

The  award  ultimately  given  hereunder  shall  be  final  and  conclusive 
as  to  the  matters  presented  for  consideration. 

Done  in  duplicate  in  English  and  Spanish  at  Washington,  this  22d 
day  of  May,  A.  D.  1902. 

John  Hay  [seal] 

M.  DE  Azpiroz  [seal] 


ADDITIONAL  DOCUMENTS 

Convention  between  the  United  States  of  America  and  the  Republic 
of  Mexico  for  the  Adjustment  of  Claims. — Concluded  July  4,  1868.^ 

Whereas  it  is  desirable  to  maintain  and  increase  the  friendly  feel- 
ings between  the  United  States  and  the  Mexican  Republic,  and  so  to 


^U.  S.  Statutes  at  Large,  vol.  15,  p.  679. 


THE  PIOUS  FUND  CASE 


13 


strengthen  the  system  and  principles  of  Republican  Government  on 
the  American  Continent;  and  whereas  since  the  signature  of  the 
Treaty  of  Guadalupe  Hidalgo  of  the  2d  of  February,  1848,  claims 
and  complaints  have  been  made  by  citizens  of  the  United  States,  on 
account  of  injuries  to  their  persons  and  their  property  by  authorities 
of  that  Republic,  and  similar  claims  and  complaints  have  been  made 
on  account  of  injuries  to  the  persons  and  property  of  Mexican  citizens 
by  authorities  of  the  United  States,  the  President  of  the  United  States 
of  America  and  the  President  of  the  Mexican  Republic  have  resolved 
to  conclude  a Convention  for  the  adjustment  of  the  said  claims  and 
complaints  and  have  named  as  their  plenipotentiaries: 

The  President  of  the  United  States,  William  H.  Seward,  Secretary 
of  State; 

And  the  President  of  the  Mexican  Republic,  Matias  Romero,  ac- 
credited as  Envoy  Extraordinary  and  Minister  Plenipotentiary  of  the 
Mexican  Republic  to  the  United  States;  who,  after  having  communi- 
cated to  each  other  their  respective  full  powers,  fotmd  in  good  and  due 
form,  have  agreed  to  the  following  articles: 

Article  1 

All  claims  on  the  part  of  corporations,  companies  or  private  indi- 
' viduals,  citizens  of  the  United  States,  upon  the  government  of  the 
Mexican  Republic,  arising  from  injuries  to  their  persons  or  property 
by  authorities  of  the  Mexican  Republic,  and  all  claims  on  the  part  of 
corporations,  companies  or  private  individuals,  citizens  of  the  Mexican 
Republic,  upon  the  government  of  the  United  States,  arising  from 
injuries  to  their  persons  or  property  by  authorities  of  the  United 
States,  which  may  have  been  presented  to  either  government  for  its 
interposition  with  the  other  since  the  signature  of  the  Treaty  of 
Guadalupe  Hidalgo  between  the  United  States  and  the  Mexican  Re- 
public of  the  2d  of  February,  1848,  and  which  yet  remain  unsettled, 
as  well  as  any  other  such^aims  which  may  be  presented  within  the 
time  hereinafter  specified,  shall  be  referred  to  two  commissioners,  one  \ 
to  be  appointed  by  the  President  of  the  United  States  by  and  with  the  / 
advice  and  consent  of  the  Senate,  and  one  by  the  President  of  the 
Mexican  Republic."^  In  case  of  the  death,  absence  or  incapacity  of 
either  commissioner,  or  in  the  event  of  either  commissioner  omitting 
or  ceasing  to  act  as  such,  the  President  of  the  United  States  or  the 
President  of  the  Mexican  Republic  respectively  shall  forthwith  name 
another  person  to  act  as  commissioner  in  the  place  or  stead  of  the 
commissioner  originally  named. 


14 


THE  HAGUE  COURT  REPORTS 


The  commissioners  so  named,  shall  meet  at  Washington  within  six 
months  after  the  exchange  of  the  ratifications  of  this  Convention,  and 
shall,  before  proceeding  to  business,  make  and  subscribe  a solemn 
declaration  that  they  will  impartially  and  carefully  examine  and  decide, 
to  the  best  of  their  judgment,  and  according  to  public  law,  justice  and 
equity,  without  fear,  favor  or  affection  to  their  own  country,  upon  all 
such  claims  above  specified  as  shall  be  laid  before  them  on  the  part 
of  the  Governments  of  the  United  States  and  of  the  Mexican  Republic 
respectively;  and  such  declaration  shall  be  entered  on  the  record  of 
their  proceedings. 

/f  The  commissioners  shall  then  name  some  third  person  to  act  as  an 
/(umpire  in  any  case  or  cases  on  which  they  may  themselves  differ  in 
I opinion.  If  they  should  not  be  able  to  agree  upon  the  name  of  such 
t third  person,  they  shall  each  name  a person,  and  in  each  and  every 
\ case  in  which  the  commissioners  may  differ  in  opinion  as  to  the  deci- 
Vsion  which  they  ought  to  give,  it  shall  be  determined  by  lot  which  of 
Vthe  two  persons  so  named  shall  be  umpire  in  that  particular  cas^  The 
person  or  persons  so  to  be  chosen  to  be  umpire  shall,  before  proceed- 
ing to  act  as  such  in  any  case,  make  and  subscribe  a solemn  declaration 
in  a form  similar  to  that  which  shall  already  have  been  made  and  sub- 
scribed by  the  commissioners,  which  shall  be  entered  on  the  record  of 
their  proceedings.  In  the  event  of  the  death,  absence,  or  incapacity  of 
such  person  or  persons,  or  of  his  or  their  omitting,  or  declining,  or 
ceasing  to  act  as  such  umpire,  another  and  different  person  shall  be 
named,  as  aforesaid,  to  act  as  such  umpire,  in  the  place  of  the  person 
so  originally  named,  as  aforesaid,  and  shall  make  and  subscribe  such 
declaration,  as  aforesaid. 

Article  2 


The  commissioners  shall  then  conjointly  proceed  to  the  investigation 
and  decision  of  the  claims  which  shall  be  presented  to  their  notice,  in 
such  order  and  in  such  manner  as  they  may  conjointly  think  proper, 
but  upon  such  evidence  or  information  only  as  shall  be  furnished  by 
or  on  behalf  of  their  respective  governments.  They  shall  be  bound  to 
receive  and  peruse  all  written  documents  or  statements  which  may  be 
presented  to  them  by  or  on  behalf  of  their  respective  governments  in 
support  of  or  in  answer  to  any  claim,  and  to  hear,  if  required,  one 
person  on  each  side  on  behalf  of  each  government  on  each  and  every 
separate  claim,  ^ould-thgy  fail  Jo  agree  in  opinion  upon  any  indi- 
vidual claim,  they  shall  call  to  their  assistance  the  umpire  whom  they 
may  have  agreed  to  name,  or  who  may  be  determined  by  lot,  as  the 


THE  PIOUS  FUND  CASE 


15 


case  may  be ; and  such  umpire,  after  having  examined  the  evidence 
adduced  for  and  against  the  claim,  and  after  having  heard,  if  required, 
one  person  on  each  side  as  aforesaid,  and  consulted  with  the  commis- 
sioners, sh§Jljiecide_thereupon  finally  and  y^hput  appeal.  The  deci- 
sion of  the  commissioners  and  of  tfie  umpire  shall  be  given  upon  each 
claim  in  writing,  shall  designate  whether  any  sum  which  may  be 
allowed  shall  be  payable  in  gold  or  in  the  currency  of  the  United 
States,  and  shall  be  signed  by  them  respectively.  It  shall  be  competenf^. 
for  each  government  to  name  one  person  to  attend  the  commissioners 
as  agent  on  its  behalf,  to  present  and  support  claims  on  its  behalf, 
and  to  answer  claims  made  upon  it,  and  to  represent  it  generally  in 
all  matters  connected  with  the  investigation  and  decision  thereof. 

The  President  of  the  United  States  of  America  and  the  President  ' 
of  the  Mexican  Republic  hereby  solemnly  and  sincerely  engage  to  con- 
sider the  decision  of  the  commissioners  conjointly  or  of  the  umpire,  as 
the  case  may  be,  as  absolutely  final  and  conclusive  upon  each  claim  / 
decided  upon  by  them  or  him  respectively,  and  to  give  full  effect  to 
such  decisions  without  any  objection,  evasion,  or  delay  whatsoever. 

It  is  agreed  that  no  claim  arising  out  of  a transaction  of  a date  prior 
to  the  2d  of  February,  1848,  shall  be  admissible  under  this  convention. 

Article  3 

Every  claim  shall  be  presented  to  the  commissioners  within  eight 
months  from  the  day  of  their  first  meeting,  unless  in  any  case  where 
reasons  for  delay  shall  be  established  to  the  satisfaction  of  the  com- 
missioners, or  of  the  umpire  in  the  event  of  the  commissioners  differ- 
ing in  opinion  thereupon,  and  then  and  in  any  such  case  the  period 
for  presenting  the  claim  may  be  extended  to  any  time  not  exceeding 
three  months  longer. 

The  commissioners  shall  be  bound  to  examine  and  decide  upon  every 
claim  within  two  years  and  six  months  from  the  day  of  their  first 
meeting.  It  shall  be  competent  for  the  commissioners  conjointly,  or 
for  the  umpire  if  they  differ,  to  decide  in  each  case  whether  any  claim 
has  or  has  not  been  duly  made,  preferred  and  laid  before  them,  either 
wholly  or  to  any  and  what  extent,  according  to  the  true  intent  and 
meaning  of  this  Convention. 


Article  4 

When  decisions  shall  have  been  made  by  the  commissioners  and  the 
arbiter  in  every  case  which  shall  have  been  laid  before  them,  the  total 


16 


THE  HAGUE  COURT  REPORTS 


amount  awarded  in  all  the  cases  decided  in  favor  of  the  citizens  of  the 
one  party  shall  be  deducted  from  the  total  amount  awarded  to  the 
citizens  of  the  other  party,  and  the  balance,  to  the  amount  of  three 
hundred  thousand  dollars,  shall  be  paid  at  the  city  of  Mexico  or  at 
the  city  of  Washington,  in  gold  or  its  equivalent,  within  twelve  months 
from  the  close  of  the  commission,  to  the  government  in  favor  of  whose 
citizens  the  greater  amount  may  have  been  awarded,  without  interest 
or  any  other  deduction  than  that  specified  in  Article  6 of  this  Conven- 
tion. The  residue  of  the  said  balance  shall  be  paid  in  annual  instal- 
ments to  an  amount  not  exceeding  three  hundred  thousand  dollars,  in 
gold  or  its  equivalent,  in  any  one  year  until  the  whole  shall  have  been 
paid. 

Article  5 

The  high  contracting  Parties  agree  to  consider  the  result  of  the  pro- 
ceedings of  this  commission  as  a full,  perfect,  and  final  settlement  of 
every  claim  upon  either  government  arising  out  of  any  transaction  of 
a date  prior  to  the  exchange  of  the  ratifications  of  the  present  Con- 
vention; and  further  engage  that  every  such  claim,  whether  or  not 
the  same  may  have  been  presented  to  the  notice  of,  made,  preferred, 
or  laid  before  the  said  commission,  shall,  from  and  after  the  conclu- 
sion of  the  proceedings  of  the  said  commission,  be  considered  and 
treated  as  finally  settled,  barred,  and  thenceforth  inadmissible. 

Article  6 

The  commissioners  and  the  umpire  shall  keep  an  accurate  record 
and  correct  minutes  of  their  proceedings,  with  the  dates.  For  that 
purpose  they  shall  appoint  two  secretaries  versed  in  the  language  of 
both  countries  to  assist  them  in  the  transaction  of  the  business  of  the 
commission.  Hach  government  shall  pay  to  its  commissioner  an 
amount  of  salary  not  exceeding  forty-five  hundred  dollars  a year  in 
the  currency  of  the  United  States,  which  amount  shall  be  the  same  for 
both  governments.  The  amount  of  compensation  to  be  paid  to  the 
umpire  shall  be  determined  by  mutual  consent  at  the  close  of  the  com- 
mission, but  necessary  and  reasonable  advances  may  be  made  by  each 
government  upon  the  joint  recommendation  of  the  commission.  The 
salary  of  the  secretaries  shall  not  exceed  the  sum  of  twenty-five  hun- 
dred dollars  a year  in  the  currency  of  the  United  States.  The  whole 
expenses  of  the  commission,  including  contingent  expenses,  shall  be 
\ defrayed  by  a ratable  deduction  on  the  amount  of  the  sums  awarded 
*^^y  the  commission,  provided  always,  that  such  deduction  shall  not  ex- 


THE  PIOUS  FUND  CASE 


17 


ceed  five  per  cent  on  the  sums  so  awarded.  The  deficiency,  if  any, 
shall  be  defrayed  in  moieties  by  the  two  governments. 

Article  7 

The  present  Convention  shall  be  ratified  by  the  President  of  the 
United  States,  by  and  with  the  advice  and  consent  of  the  Senate 
thereof,  and  by  the  President  of  the  Mexican  Republic  with  the  ap- 
probation of  the  Congress  of  that  Republic,  and  the  ratifications  shall 
be  exchanged  at  Washington  within  nine  months  from  the  date  hereof, 
, or  sooner  if  possible. 

In  witness  whereof  the  respective  plenipotentiaries  have  signed  the 
same  and  have  affixed  thereto  the  seals  of  their  arms. 

Done  at  Washington,  the  fourth  day  of  July,  in  the  year  of  our  Lord 
one  thousand  eight  hundred  and  sixty-eight. 

William  H.  Seward  [L.  S.] 

M.  Romero  [L.  S.] 


Opinion  of  Mr.  Wadsworth,  in  the  original  Pious  Fund  Case  before 
the  United  States  and  Mexican  Claims  Commission  of  1868.^ 

The  commissioners  having  differed  in  opinion  in  this  case,  Mr.  Com- 
missioner Wadsworth  delivered  the  following  opinion: 

The  “Pious  Fund  of  the  Califomias,”  was  founded  by  a private 
charity,  in  aid  of  Christian  missions  in  the  Califomias,  Lower  and 
Upper,  for  the  purpose  of  spreading  amongst  their  savage  inhabitants 
the  gospel  according  to  the  tenets  of  the  Roman  Catholic  Church. 
The  objects  sought  and  pointed  out  by  the  founders,  were  exclusively 
charitable  and  religious,  and  not  political. 

They  devoted  their  gifts  to  the  conversion  of  the  heathen  in  those 
territories  for  the  glory  of  God,  as  they  supposed,  and  not  for  the 
aggrandizement  of  the  State.  The  latter  was  to  be  incidentally  bene- 
fited by  these  missionary  labors,  but  this,  certainly,  did  not  enter  into 
the  thoughts  of  the  zealous  men  and  women  who  disinherited  their 
own  heirs,  for  the  sake  of  the  savages  of  the  Califomias. 

The  fund  never  did,  and  does  not  now  belong  to  the  State,  and  the 
latter,  be  it  said  to  its  credit,  never  at  any  time  claimed  it,  or  avowed  a 
purpose  to  divert  it  from  the  direction  given  it  by  its  founders. 


Wnited  States  and  Mexican  Claims  Commission,  Opinions  (MS.  Dep’t  of 
State),  vol.  V,  p.  84. 


18 


THE  HAGUE  COURT  REPORTS 


Plainly  enough,  in  the  beginning,  it  was  to  be  devoted  in  aid  of  a 
Roman  Catholic  Missionary  Church  in  the  Califomias,  under  the  ex- 
clusive control  of  the  Jesuit  fathers,  for  the  spread  of  the  Catholic 
^^ith  amongst  the  inhabitants  of  these  lands.  Accordingly,  the  fund 
I was  continuously  controlled  and  administered  by  the  Jesuits,  as  its 
i^appointed  trustees,  until  their  expulsion  from  New  Spain.  When  this 
took  place,  there  was  no  longer  any  trustee  to  administer  the  fund.  But 
equity  never  suffers  a trust  to  fail  for  the  want  of  a trustee,  and  under 
these  circumstances,  the  sovereign,  who  by  one  of  those  useful  fictions 
is  held  to  be  a foimtain  of  justice  and  a sort  of  inner  sanctuary  of 
equity,  took  the  place  of  the  trustees  whom  he  had  extinguished,  until 
/ he  again  provided  for  the  more  appropriate  administration  of  the 
I fund  by  the  hands  of  the  head  of  the  Missionary  Church  of  the  Cali- 
■ fomias,  who  was  at  once  president  of  the  mission  and  Bishop  of  the 
Diocese,  and  when  finally,  the  Mexican  Government  again  took  pos- 
session of  the  fund,  under  the  decree  of  October  24,  1842,  it  took  and 
held  it  as  a trustee,  as  the  decree  of  February  8,  1842,  declared,  “to 
fulfil  the  purpose  proposed  by  the  donor  in  the  civilization  and  con- 
version of  the  savages,”  of  the  Califomias.  And  the  decree  of  October 
/24,  1842,  declared  that  the  action  of  the  Government  in  resuming  the 
administration  was  “intended  to  fulfil  most  faithfully  the  objects  de- 
signed by  the  founders.”  This  act  calls  it  the  “Pious  Fund  of  the 
Califomias,”  and  with  no  propriety  can  it  be  called  in  any  sense  a 
political  fund,  unless  it  is  intended  thereby  to  affirm  that  the  State 
at  the  time  considered  the  spread  of  the  Christian  religion,  under  the 
direction  of  the  Church,  a national  or  political  affair. 

I think  it  therefore  plain  that  by  the  decree  of  October  1842,  the 
fund  was  still  to  be  devoted  to  the  aid  of  the  missionary  labors  of  the 
same  Church  in  the  Califomias,  and  that  its  annual  income  was  to  be 
expended  by  that  Church  for  missionary  purposes  in  the  Califomias; 
that  is,  for  the  conversion  of  the  heathen.  This  is  what  the  decrees 
of  the  Government  mean,  if  we  are  to  give  them  any  reading  consist- 
ent with  honesty  and  good  faith;  and  we  are  not  at  liberty  to  give 
them  any  other.  Tbe  StatgL-th£lLj>€came  a mere  tmstee  of  funds,  pro- 
vided by  private  charity,  to  be  expended  forlnissionary  purposes  m a 
particular  field  of  labor,  under  the  direction  of  a particular  religious 
organization:  it  should  punctually_pay  the  annual  income  to  this  re- 
ligious organization,  to  be  expended  m the  work  of  converting  the 
heathen  of  the  two  Califomias,  for  I think  it  is  evident  that  the  Cali- 
fomias are  still  full  of  heathen,  and  that  the  number  has  increased  on 


THE  PIOUS  FUND  CASE 


19 


the  whole,  since  in  addition  to  the  autochthones  and  the  Europeans 
dwelling  there,  Asia  has  contributed  the  “Heathen  Chinese.” 

If  a private  individual  held  the  fund  the  courts  would  compel  him 
to  pay  the  interest  to  the  Church,  which,  although  its  missions  have 
been  abolished  as  organized  by  its  priests,  the  Jesuits,  still  labors  in 
that  missionary  field  for  the  conversion  of  the  savages.  Nothing  else 
can  be  done  with  the  fund  to  carry  out  the  object  of  the  founders,  and 
this  is  so  near,  and  indeed  so  nearly  identical  with  the  ancient  charity, 
that  it  is  not  necessary  to  frame  a scheme  for  its  administration. 

The  question  then  is  how  shall  the  income  of  the  fund  be  appor- 
tioned between  the  two  Californias,  and  what  does  it  amount  to  in  the 
aggregate, 

^ It  is  claimed  in  the  argument  of  the  agent  of  Mexico,  indeed,  that 
the  Upper  California  lost  all  interest  in  the  fund  by  reason  of  the 
.cession  to  the  United  States  of  that  territory,  but  I can  not  perceive 
how  this  fact  can  change  the  direction  given  to  the  fund  by  the  found- 
ers. If  both  the  Californias  had  been  ceded  to  the  United  States, 
would  the  beneficiaries  have  lost  all  interest  in  the  fund  provided  by 
private  zeal  for  their  conversion?  This  was  not  claimed  when  Spain 
lost  the  Californias,  or  when  the  Philippine  Islands  claimed  a share 
in  the  fund,  and  I do  not  see  how  it  can  affect  the  fund  at  all.  The 
cession  did  not  affect  civil  rights,  or  the  interests  of  private  property. 
Whether  the  estate  was  legal  or  equitable,  an  inhabitant  of  Upper 
California,  having  an  estate  or  interest  in  property  situated  in  Mexico, 
or  a fund  located  there,  had  the  same  estate  or  interest  after  cession 
as  before.  It  is  also  an  error  to  hold  that  the  cession  dissolved  cor- 
porations before  created  by  the  laws  of  the  territory,  whether  these 
were  sole  or  aggregate,  public  or  private,  lay  or  ecclesiastical. 

1 am  clearly  of  opinion,  that  whatever  right  or  interest  in  the  fund 
pertained  to  the  Church  in  Upper  California  in  aid  of  its  missionary 
work  before,  remained  to  it  after  the  cession,  unaffected  and  unim- 
paired. 

The  Californias  were  entitled  to  the  benefits  of  the  whole  fund  to 
be  expended  by  the  Church  laboring  in  that  field,  first  under  the 
Jesuits  and  after  their  expulsion,  under  such  other  priests  or  officers 
of  the  same  faith  as  the  Church  might  authorize,  and  the  State  tolerate. 

When  it  becomes  necessary  to  divide  the  income,  and  to  set  apart 
the  proportion  to  be  expended  in  each  of  the  Californias,  how  shall 
this  income  be  divided?  In  my  opinion  it  must  be  divided;  that  is, 
each  of  the  Californias,  must  take  a moiety.  I do  not  know  how  else 


20 


THE  HAGUE  COURT  REPORTS 


to  apportion  it,  and  do  not  see  any  fact  calling  for  a different  division. 
If  we  look  at  the  population  of  each  territory  at  the  time  of  the  ces- 
sion, we  discover  no  great  disparity.  Besides,  I do  not  conceive  that 
because  a charitable  fimd  is  to  be  devoted  to  missionary  work  in  two 
districts  of  country,  that  this  gives  an  interest  to  each  in  proportion  to 
population.  On  the  contrary,  when  it  became  necessary  to  divide  the 
bequest  made  by  Dona  Juefa  Paula  de  Arguelles  to  the  missions  in 
China  and  New  Spain,  the  courts  divided  it  equally  between  the 
Philippine  Islands  and  New  Spain,  the  population  being  ignored. 

I take  the  report  of  Pedro  Ramirez,  of  February  28,  1842,  upon  the 
condition  of  the  fund  made  to  Ignacio  de  Cubas  (Exhibit  A to  the 
deposition  of  Jose  Maria  de  Romo  Jesus)  as  a sufficiently  accurate 
and  satisfactory  account. 

According  to  this,  the  Government  at  that  date  owed  the  fund  the 


sum  of 

$1,082,078.00 

But  deduct  a bad  debt 7,000.00 

Leaves  in  the  Treasury  balance $1,075,078.00 


Individuals  owed  the  fund $118,739.00 

Bad  debts  off ' 46,617.00 

72,122.00 

Rent  of  the  estate  of  Ibarra $2,000.00 

Rent  of  Nos.  11  & 12  Tergara  St.  2,625.00 
Three  estates  rented  to  Senor 

Belauzaran  for  12,705.00 


Total  rents  $17,330.00 


Equal  at  six  per  cent  to  a capital  of 288,833.00 

Total  of  the  fund '. $1,436,033.00 


It  will  be  seen,  that  I take  no  account  of  the  Estate  of  Cienega  del 
Pastor,  because  it  was  attached  and  held  by  Senor  Jauregui  for  a large 
debt,  and  there  is  no  evidence  in  this  record,  that  the  Government 
ever  obtained  the  property,  or  derived  any  benefit  from  it. 

By  the  decree  of  October  24,  1842,  the  public  treasury  acknowledged 
an  indebtedness  to  the  “Pious  Fund  of  the  Califomias,”  of  six  per 
cent  per  annum,  on  the  total  proceeds  of  the  sales,  and  pledged  the 
revenues  from  the  tobacco  for  the  payment  of  the  income.  This  pledge 
was  never  kept,  but  the  revenue  from  the  tobacco  was  otherwise  ap- 
propriated by  the  Government.  Nevertheless,  there  is  .an_acknowlr.^ 


THE  PIOUS  FUND  CASE 


21 


edged  indelit^ness  of  six  per  cent  on  the  capital  of  the  fund  payable 
annually.  This  amounts  to  the  sum  of  $86,161.98  and  the  first  instal- 
ment was  due  October  24,  1848,  for  which,  according  to  my  views, 
claimants  can  have  any  award  here,  and  the  last  instalment  fell  due 
October  24,  1868,  because  the  next  falling  due  after  February,  1869, 
can  not  be  awarded  by  this  commission. 

This  gives  for  twenty-one  years,  a grand  total  of  $1,809,401.58,  one 
moiety  of  which  belongs  to  claimants  to  be  used  in  aid  of  the  mission- 
ary labors  of  the  Church  in  Upper  California,  for  the  conversion  of  the 
heathen. 

^he  beneficiaries  of  this  .moiety  of  the  fund  , are  in  Upper  Cali- 
forma.  citizens  of  the  TTnitqd  .State.s  by  the  trgaty  of  cession.  They 
can  not  receive  the  benefit  of  the  fund  according  to  the  will  of  the 
founders,  except  through  the  ministry  of  the  Roman  Catholic  Church 
in  Upper  California,  empowered  by  the  Church  at  Rome  to  preach, 
convert  and  baptize  the  heathen  of  that  land.  But  as  the  Roman 
Catholic  ecclesiastical  corporations  sole  and  the  beneficiaries  of  the 
fund  are  there,  and  all  [are]  citizens  of  the  United  States  by  the  treaty 
of  cession  and  the  law  of  the  place,  and  as  the  United  States  appears 
before  this  commission  claiming  redress  for  and  on  behalf  of  “the 
Roman  Catholic  Church  of  the  State  of  California  and  of  its  clergy, 
laity  and  all  persons  actually  or  potentially  within  its  fold  and  entitled 
to  its  ministration,  and  all  others  beneficially  interested  in  the  trust 
estate,”  we  have  before  us  undoubtedly  all  persons  interested  in  the 
fund ; and  as  the  award  is  made  to  the  United  States,  that  Power  will 
be  responsible  for  the  proper  disbursement  of  the  sum  received;  and 
its  courts  of  justice  will  not  ask  our  leave  to  settle  and  adjust  the 
ts  of  all  parties  claiming,  or  to  claim  the  same. 


see  therefore  no  difficulty  in  the  way  of  awarding  to  the  United 


''  States  whatever  sum  may  be  justly  due  from  the  Government  of 
Mexico  since  the  date  of  the  treaty  of  cession.  Certainly  justice  and 
equity  call  loudly  on  the  Mexican  Government  to  pay  according  to  its 
V pledged  faith. 

”~The  annual  income  of  the  “Pious  Fund  of  the  Californias,”  to  the 
Ministers  responsible  for  its  faithful  disbursement  in  the  Californias, 
for  the  conversion  of  their  inhabitants,  according  to  the  will  of  the 
pious  founders.  The  fund  does  not  belong  to  the  Government  of 
Mexico,  not  a dollar  of  it.  It  is  private  property  sacredly  devoted,  by 
the  piety  of  a past  age,  to  Christian  charity,  and  fortified  against 
political  spoliation  by  all  the  sanctions  of  religion  and  all  the  obliga- 
tions of  good  faith. 


22 


THE  HAGUE  COURT  REPORTS 


But  the  magnitude  of  the  labors  of  this  commission  will  not  allow 
me  time  to  go  into  the  further  discussion  of  this  interesting  and  im- 
portant case.  I must  content  myself  with  the  declaration  of  my  pur- 
pose to  respect  the  wishes  of  the  pious  people  of  the  olden  times,  with 
reference  to  their  own  property,  devoted  according  to  the  laws  then  in 
force,  to  objects  of  their  own  selection. 

r It  is  my  decision,  that  the  Government  of  Mexico  pay  to  that  of 
/ the  United  States,  in  the  gold  coin  of  the  latter,  with  interest  at  the 
I rate  of  six  per  cent  per  annum,  from  the  24th  of  October,  1868,  to  the 
close  of  the  labors  of  this  commission,  for  and  on  behalf  of  the  claim- 
ants, the  sum  of  nine  hundred  and  four  thousand  and  seven  hundred 
dollars,  and  seventy-nine  cents  ($904,700.79)  and  $100  for  printing 
and  proofs. 


Opinion  of  Mr.  Zamacona,  in  the  original  Pious  Fund  Case  before 

the  United  States  and  Mexican  Claims  Commission  of  i868.^ 

The  commissioners  having  differed  in  opinion  in  this  case,  Mr.  Com- 
missioner Zamacona  delivered  the  following  opinion : 

The  question  raised  by  these  claimants  has  a certain  aspect  of  his- 
torical investigation,  for  it  is  impossible  that  persons  versed  in  the 
history  of  the  conquest  of  Mexico  who  know  the  system  and  means 
employed  by  the  Government  of  Spain  to  carry  that  great  undertaking 
to  its  completion,  should  be  unacquainted  with  the  national  and  strictly 
Mexican  character  of  the  resources  which  the  Bishops  of  Upper  Cali- 
fornia claim  as  if  they  were  an  appendage  of  that  province,  transmis- 
sible by  virtue  of  the  treaty  by  which  it  was  ceded  to  the  United  States. 
At  times  an  incorrect  denomination  is  the  cause  of  transcendental  er- 
rors. That  is  the  case  with  the  phrase  employed  to  designate  the  ele- 
ments with  which  the  Spaniards  carried  out  the  conquest  of  certain 
territories  situated  on  the  northwest  of  Mexico.  With  an  impropriety, 
of  which  the  spirit  of  the  epoch  is  the  explanation,  those  resources 
were  called  “The  Pious  Fund  of  California”  (el  fondo  piadoso  de 
California)  and  this  must  have  been  one  of  the  principal  causes  of 
the  errors  which  the  present  claim  involves,  and  which  consists  [jut] 
in  the  claimants,  believing  that  the  constituent  elements  of  that  fund, 
so-called,  belongs,  notwithstanding  its  national  character,  its  many 
transformations  and  its  dilution,  so  to  say,  in  the  treasury  of  Mexico, 
to  the  Catholic  Church  of  Upper  California. 

^United  States  and  Mexican  Claims  Commission,  Opinions  (MS.  Dep’t  of 
State),  vol.  V,  p.  90. 


THE  PIOUS  FUND  CASE 


23 


The  conquest  of  that  country  and  of  the  Peninsula  which  is  still 
retained  by  Mexico  under  the  name  of  Lower  California  was  under- 
taken by  the  Spanish  Government  with  the  same  means  by  which  the 
extension  of  its  conquest  in  America  was  accomplished.  The  first  acts 
of  occupation  and  possession  performed  by  the  delegates  of  the  mon- 
arch used  to  have  the  form  of  material  acts  supported  by  arms ; but 
at  a later  time,  there  irradiated  from  that  nucleus  in  which  the  Spanish 
flag  had  been  planted,  expeditions,  apparently  of  a religious  character, 
which  were  nothing  more  than  a complement  of  conquest  of  little  cost 
in  money  or  blood.  It  passes  for  a proverb  among  those  who  have 
profitably  studied  the  conquest  of  New  Spain,  that  the  history  of  that 
important  event  can  only  be  found  in  the  chronicles  of  the  convents, 
and  mention  is  made  even  of  the  various  religious  orders  which  re- 
spectively and  successively  conquered  the  provinces  of  Mexico.  To 
the  end  of  carrying  the  authority  of  the  Spanish  Government  to  the 
northwestern  end  of  the  country,  the  same  method  was  applied,  with 
this  difference,  that  a more  marked  and  prominent  part  was  assigned 
to  the  priests  charged  with  making  the  reduction  (la  reduccion).  The 
use  of  this  term  suggests  an  observation  which  ought  not  to  be  omitted, 
namely,  that  the  aspect,  in  a certain  way  political,  of  the  labors  of  the 
missionaries  in  Mexico  is  reflected  upon  even  the  locutions  used  to 
express  their  work,  and  that  the  tendency  of  this  work  was  not  less  t3^ 
conquer  souls  for  the  Catholic  faith  than  subjects  for  the  monarchy 
of  Spain. 

The  Jesuits  took  this  undertaking  under  their  charge  in  regard  to 
the  Californias ; their  order  had  acquired  a great  development  in  the 
Spanish  Colonies  of  America  and  represented  not  only  a great  and 
religious  power,  but  a great  monetary  power.  At  a certain  time,  cor- 
porations of  that  kind,  not  only  in  Mexico,  but  even  in  Spain,  united 
to  the  functions  of  agents  of  the  political  power  those  of  institutions 
of  credit,  and  they  were  soon  to  distribute  the  capital  they  had  ac- 
cumulated, thanks  to  their  great  influence  over  the  consciences,  not 
only  in  the  sphere  of  industry  but  in  that  of  Government. 

The  Government  of  Spain  had  little  means  when  the  conquest  of  the 
Californias  was  planned.  Some  attempts  had  been  made  in  that  direc- 
tion by  means  of  naval  expeditions,  but  without  result,  and  the  vice- 
roys of  New  Spain  decided  to  avail  themselves  of  the  opportunity  of- 
fered them  by  the  Jesuits  who  were  willing  to  take  upon  themselves 
continuation  of  the  work  and  the  raising  of  the  means  required  by  it. 
The  acceptance  of  this  offer  is  the  starting  point  of  the  missions  of 


24 


THE  HAGUE  COURT  REPORTS 


Lower  California  and  the  explanatory  key  with  which  their  true  char- 
acter can  be  disclosed. 

Here  we  meet  with  another  term  which  may  mislead  such  as  are 
only  acquainted  with  what  is  generally  designated  with  the  name  of 
missions,  and  especially  the  missions  organized  in  this  country  by 
some  religious  or  benevolent  societies.  Reflecting  upon  the  same  his- 
tory which  the  claimants  give  us  of  the  missions  of  California,  it 
must  be  recognized  that  they  were  institutions  of  an  anomalous  and 
equivocal  character,  and  that  in  them  civil,  military  and  political  aspect 
predominated  over  the  religious.  Further  on  we  shall  have  occasion 
to  demonstrate  this;  for  the  moment  it  suffices  to  say  that  the  solici- 
tude of  the  Jesuits  and  their  arrangements  calculated  to  extend  the 
influence  and  labors  of  their  order  to  California  were  all  with  the 
Government  of  Mexico,  that  they  implied  the  mission  of  making  a 
conquest  for  the  Spanish  metropolis,  and  that  the  acts  and  practical 
means  being  required  to  conform  to  this  point  of  departure,  the  said 

(Jesuits  presented  themselves  in  Lower  California  less  as  apostles  than 
as  delegates  of  the  Government,  invested  with  political  and  military 
powers  and  with  such  prerogatives  in  the  matter  of  administration  and 
war  as  were  far  from  complying  with  the  simple  character  of  mis- 
sionaries. 

In  furtherance  of  that  arrangement  the  Jesuits  obtained  impor- 
tant donations  for  the  enterprise  which  the  Government  of  the  Vice- 
roy had  intrusted  to  them,  and  zvith  the  consent  of  the  latter  they  ad- 
ministered and  invested  the  means  thus  obtained. 

That  was  the  condition  of  things  until  the  Society  of  Jesus  was  ex- 
pulsed  from  the  Spanish  dominions  and  at  a later  time  extinguished, 
there  being  marked,  as  we  shall  see  further  on,  during  all  this  initial 
period  of  the  missions,  two  circumstances  which  are  very  important 
for  the  decision  of  this  case. 

1st.  The  military,  political  and  administrative  functions  performed 
by  the  missionaries. 

2d.  Their  dependency  on  the  Spanish  Government  and  of  its  dele- 
gates sent  to  Mexico  and  known  by  the  name  of  viceroys. 

The  Jesuits  once  expulsed  and  extinguished  and  their  temporal  con- 
cerns occupied,  everything  relating  to  the  missions  of  California  came 
k into  the  hands  of  the  Government,  not  only  by  virtue  of  its  rights  but 
because  the  circumstances  did  not  permit  to  act  otherwise. 

"''^he  Government  was  the  only  one  who  could  substitute  those  priests 
in  the  administration  of  the  institutions  which  had  been  founded  in 
California  and  of  the  means  intended  for  their  maintenance.  The 


THE  PIOUS  FUND  CASE 


25 


claimants  who,  casting  a retrospective  glance  on  the  acts  of  the  civil 
power  in  regard  to  the  missions  in  question,  censure  very  ancient 
transactions  which  neither  they  nor  we  are  called  upon  to  qualify,  do 
not  take  notice  that  independently  of  the  right,  the  interest  of  civiliza- 
tion and  order  required  that  the  Government  of  Mexico  should  sub- 
stitute itself  in  the  place  of  the  extinguished  Jesuits  in  regard  to 
the  establishment  to  which  the  case  refers. 

So  it  happened,  and  the  Colonial  Government  of  Mexico,  without 
contradiction,  without  claim  on  the  part  of  the  ecclesiastical  author- 
ity, took  entire  control  of  the  missions  of  California,  so-called,  and 
put  them  in  charge  of  other  religious  orders. 

The  latter  assumed  the  management  of  them,  and  acknowledged  by 
many  acts  the  mandate  and  the  delegation  on  the  part  of  the  civil 
power.  It  is  to  be  observed  that  in  the  keeping  of  the  missions,  after 
they  were  founded,  the  private  donations  were  confounded,  although 
not  in  equal  proportions  with  the  subsidies  of  the  Government,  and 
that  the  expenses  required  by  them  were  considered  as  a burden  of  the 
public  treasury. 

f When  Mexico  conquered  her  independence  things  continued  on  the 
same  footing,  and  the  executive  and  legislative  power  of  the  Republic 
continued  without  contradiction  to  arrange  everything  relating  to  the 
establishment  founded  in  California.  The  position  in  which  the  Gov- 
ernment of  Mexico  was  in  regard  to  that  power,  received  even  the 
sanction  of  some  judicial  decisions  given  in  cases  relative  to  some  of 
the  most  important  legacies  made  in  favor  of  the  missions.  In  said 
decisions  not  only  the  interest  belonging  to  the  mission  was  deter- 
mined, but  it  was  also  declared  that  that  interest  remained  at  the  dis- 
posal of  the  Government  (see  document  36,  page  6^). 

The  administration  of  the  fund  in  dispute  sustained  many  changes 
since  the  end  of  the  war  of  independence  in  Mexico,  until  the  treaty 
of  peace  with  the  United  States  was  concluded  in  1848.  Religious 
corporations,  officers  appointed  by  the  authorities,  boards  of  a lay 
character  also  appointed  by  the  Government,  and,  finally,  the  Epis- 
copal prelate  of  the  Califomias  converted  into  a bishopric,  had  in  suc- 
cession the  administration  of  said  fund,  but  in  all  the  phases  of  that 
administration  the  supremacy  and  superior  authority  of  the  Govern- 
ment was  recognized. 

The  reference  just  made  to  the  bishopric  established  in  California 
in  1836,  brings  to  the  memory  of  the  undersigned  a circumstance  very 


Not  printed. 


26 


THE  HAGUE  COURT  REPORTS 


important  for  the  decision  of  this  case.  As  will  be  seen  further  on, 
since  the  conquest  of  the  Californias  was  undertaken,  when  the  fund 
of  the  missions  was  consolidated,  when  its  administration  was,  in 
some  cases,  modified,  when  the  bishopric  was  erected,  and  especially 
when  the  latter  occurrence  took  place,  it  was  given  to  understand  by 
the  missionaries,  by  the  donors,  by  the  Government,  and  even  by  the 
“^Bishop,  when  he  made  some  complaints  in  regard  to  the  Pious  Fund, 
that  the  missions,  their  dotation,  their  arrangement,  their  administra- 
tion, had  among  other  objects  that  of  protecting  the  possession  of  the 
Californias,  first  for  the  Crown  of  Spain  and  then  for  the  Republic 
of  Mexico,  against  the  progressive  danger  arising  from  the  vicinity 
of  the  United  States.  It  is  proper  to  observe  here  by  the  way, 
without  prejudice  to  a more  ample  elucidation  of  this  point,  that  it 
would  be  an  absurdity  to  pretend,  as  these  claimants  do,  that  the  ele- 
ments which  the  Mexican  Government  employed  to  avoid  the  loss  of 
Upper  California  should  now  be  transferred  to  a society  subsequently 
organized  in  the  country  by  which  that  province  was  conquered. 

It  would  be  almost  the  same  as  if  Russia  [jtV.]  should  keep  France 
perpetually  bound  to  pay  the  expenses  of  the  fortifications  which  the 
latter  nation  vainly  erected  in  Alsace  and  Lorraine  for  the  defense  of 
those  provinces.  Now  again  to  the  history  of  the  fund.  After  the 
Government  of  Mexico  placed  it  for  its  administration  in  the  hands 
of  the  bishop  who  had  been  created  by  it,  it  withdrew  from  him  such 
a commission,  and,  finally,  the  incorporation  of  the  fund  in  the  national 
treasury  was  decreed.  At  the  same  time  it  was  ordered  that  a sum 
amounting  to  six  per  cent  of  the  incorporated  property  should  be  an- 
nually applied  to  the  objects  for  which  the  said  fund  had  been  estab- 
lished. Some  of  the  estates  in  which  the  fund  consisted  were  alien- 
ated, by  virtue  of  said  order,  in  favor  of  individuals.  Subsequently, 
when,  in  consequence  of  one  of  the  changes  so  frequent  at  that  time 
in  the  Mexican  politics,  the  spirit  of  the  Government  changed,  it  was 
decreed  that  the  sale  of  said  property  should  be  stopped,  and  that  that 
which  still  remained  unsold  should  be  delivered  back  to  the  Bishop  of 
California. 

This  property  must  have  been  very  small,  because,  as  will  be  seen 
in  the  course  of  this  opinion,  the  so-called  Pious  Fund  of  California 
had  for  a long  time,  and  especially  during  the  war  for  independence, 
sustained  great  and  progressive  detriments.  The  war  with  the  United 
States  came  soon  after  the  last-mentioned  measures  were  taken.  A 
portion  of  the  Californias  was  occupied  by  the  American  Government 
even  before  the  treaty  of  Guadalupe  was  concluded.  By  this  treaty 


THE  PIOUS  FUND  CASE 


27 


Mexico  ceded  the  territory  of  which  she  had  already  been  dispossessed. 
The  Mexican  Bishopric  of  the  two  Californias  ceased  to  exist,  as  also 
the  local  interests  which  the  Government,  seconded  by  the  Church,  had 
promoted  in  that  part  of  the  Republic,  and  things  continued  in  the 
same  condition  after  the  peace  with  the  United  States  was  concluded. 
Now  an  ecclesiastical  corporation  newly  organized  in  Upper  Cali- 
fornia, in  the  bosom  of  the  American  nationality,  in  conformity  with 
the  laws  of  one  of  its  States,  in  short,  the  Catholic  Association  of 
Upper  California  represented  by  its  bishops  (some  of  whom  are  of 
recent  creation)  pretend  that  Mexico  should  pay  to  them  the  interests 
of  the  so-called  “Pious  Fund,”  estimating  them  at  their  pleasure,  and 
deducting  only  an  insignificant  fraction  for  the  sake  of  the  rights 
recognized  in  the  Catholics  of  Lower  California;  in  order  to  estab- 
lish such  a claim  before  us,  the  facts,  or  to  say  better,  their  character 
has  been  adulterated  in  the  memorial.  This  adulteration  may  not  be 
intentional,  but  can  not  fail  to  be  noticed  by  any  one  who  has  read  the 
documents  in  this  case.  The  fund  whose  interests  are  claimed  is  de- 
scribed in  the  memorial  as  a foundation  made  for  the  precise  and  ex- 
clusive purpose  of  supporting  the  Catholic  Church  of  the  Californias, 
and  everything  is  omitted  which  refers  to  the  civil  and  political  objects 
which  presided  over  the  first  mission  sent  and  the  collection  of  the 
resources  necessary  for  their  sustenance. 

In  treating  of  the  part  which  the  Mexican  Government  took  in  the' 
administration  of  those  resources  the  real  condition  of  things  is  in- 
verted, because  that  Government  is  represented  as  possessor  and  ad- 
ministrator in  the  name  of  the  Church,  when  the  opposite  is  a truth 
which  reflects  on  every  part  of  the  transaction,  above  all  after  the  e^?' 
pulsion  of  the  Jesuits.  It  was  not  the  Mexican  Government  who  re- 
ceived the  funds  in  question  from  the  Femandinos  and  Dominicans 
and  from  the  Bishop  Garcia  Diego  to  attend  to  their  keeping  and 
administration;  on  the  contrary,  those  religious  orders  and  that  pre- 
late took  under  their  charge  said  administration  as  delegates  of  the 
Government  of  Mexico,  who  at  certain  times  placed  it  in  the  hands  of' 
corporations  and  functionaries  strictly  civil.  Upon  the  basis  of  this 
false  precedent,  the  incorporation  in  the  national  treasury  as  ordered 
and  carried  into  effect  in  the  year  ’42  is  described  as  a wrongful  act 
by  which  the  Government  substituted  itself,  authoritatively  and  ar- 
bitrarily, in  the  place  of  the  Bishop  of  California,  and  all  is  disre- 
garded that  relates  to  the  antecedents  showing  the  civil  and  political 
interest  connected  with  the  missions  and  their  fund  and  with  the  views 
of  the  Government,  of  the  donors  and  even  of  the  Church ; views 


28 


THE  HAGUE  COURT  REPORTS 


which  were  not  confined  to  definite  localities,  but  referred,  as  will  be 
seen  further  on,  to  the  conquest  of  provinces  distant  from  California. 
It  is,  then,  easy  to  see  what  ratification  the  incorrect  history  made 
f this  affair  in  the  memorial  requires.  It  is  necessary  to  repeat  that 


p the  undertaking  of  the  first  missionaries  in  California  was  more  of 
Government  than  of  the  Church ; that  the  persons  of  whom  dona- 
tions were  obtained  made  them  for  establishments  already  founded 
for  the  principal  and  known  purpose  of  continuing  and  consolidating 
the  Spanish  conquests  in  the  northwestern  part  of  Mexico,  that  the 
funds  donated  were  originally  placed  in  charge  of  the  Jesuits,  who  had 
ample  freedom  of  administration  and  were  exempt  from  giving  ac- 
counts; and  that  after  the  expulsion  and  extinction  of  that  order,  the 
Spanish  Government  first,  and  that  of  Mexico  afterwards,  substituted 
themselves  in  the  place  of  the  Jesuits.  The  fact  that  they  had,  dur- 
ing a certain  f>eriod,  their  functions  delegated  in  the  monks  of  San 
Fernando  and  Santo  Domingo  and  in  the  Bishop  of  California,  does 
not  take  from  the  institutions  or  the  interests  connected  with  them 
what  they  have  of  national  and  civil  [jic]  ; nor  was  that  fact  ever  re- 
garded by  the  religious  orders  and  the  Bishop  in  Mexico  as  a proof 
that  they  possessed  and  administered  in  their  own  right. 

We  also  notice  in  the  claimants’  memorial  a certain  tendency  to  ap- 
preciate, to  censure  and  to  claim,  in  regard  to  former  acts  of  the 
Spanish  and  Mexican  Governments,  without  knowing  that  whatever 
the  character  and  importance  of  those  acts  may  have  been,  they  can 
^ot  constitute  a proper  subject  for  reclamation,  as  their  date  is  an- 
{ terior  to  the  treaty  of  Guadalupe,  by  which  Mexico  and  the  United 


Whatever  may  be  the  measures  by  which  in  [«c]  the  position  to 
which  its  original  intervention  in  the  organization  of  the  missions  and 
its  substitution  in  the  place  of  the  Jesuits  entitled  it,  this  is  not  a 
proper  subject  to  be  submitted  to  discussion  before  us.  The  logical 
and  legal  starting-point  from  which  to  appreciate  the  rights  alleged 
by  these  claimants  is  the  condition  of  things  at  the  time  when  the 
treaty  of  Guadalupe  was  concluded. 

That  situation  implied  a supreme  power  greater,  as  to  the  adminis- 
tration and  investment  of  funds,  than  that  which  the  Jesuits  had 
exercised.  The  Mexican  Government  always  showed  great  respect 
towards  the  will  of  those  who  bequeathed  property  for  the  reduc- 
tion of  the  natives  in  the  western  part  of  Mexico.  And  there  is 
no  reason  why  the  said  Government,  placed  as  it  is  in  the  same  place 
which  the  first  missionaries  occupied,  could  not  claim,  with  the  same 


States  agreed  to  consider  all  their  national  claims  as  settled.  [6'tc.] 


THE  PIOUS  FUND  CASE 


29 


right,  that  it  is  exempt,  in  conformity  with  the  will  of  the  donors,  from 
the  obligation  of  giving  account  in  regard  to  the  administration  and 
investment  of  the  fund  to  which  the  present  case  refers. 

The  question  raised  by  the  claimants  is  not  a question  of  facts. 
They  really  agree  with  the  advocate  of  Mexico  in  the  history  of  the 
affair  and  apply  to  the  same  sources  to  establish  the  precedents  of 
the  case.  They  only  differ  in  regard  to  certain  secondary  points  and 
as  to  the  flattering  calculations  about  the  importance  of  the  funds  the 
interests  of  which  are  claimed  by  these  prelates.  The  question,  there- 
fore, consists  in  the  appreciation  of  facts  in  which  the  two  interested 
parties  agree,  or  to  say  better,  in  the  philosophy  of  the  history  related 
by  both. 

In  that  history  Mexico  sees  the  antecedents  of  an  affair  in  which 
the  civil  and  political  character  prevails,  whereas  the  present  Bishops 
of  California  do  not  see  in  all  that  relates  to  the  missions  maintained 
there  by  the  Spanish  and  Mexican  Governments  anything  else  than 
a work  essentially  and  exclusively  religious  and  an  interest  of  a local 
character  connected,  by  an  indissoluble  and  perpetual  bond,  with  the 
dignitaries  of  the  Catholic  Church  in  those  regions. 

After  a little  reflection  we  can  see  how  incorrect  that  judgment  of 
the  claimants  is,  and  that  in  the  foundation,  organization  of  re- 
sources and  administration  in  question  there  is  much  more  of  a 
temporal  than  of  a spiritual  and  religious  character;  much  more  of 
national  and  Mexican  than  of  a philanthropic  or  local  interest. 

Two  circumstances  have  led  the  claimants  into  error,  which  ought 
to  be  taken  in  consideration  by  him  does  not  want  to  make,  as  they 
do,  false  appreciations. 

One  of  them  which  has  been  already  pointed  out  refers  to  the  re- 
ligious means  used  by  the  Spanish  Government  to  colonize  and  extend 
its  dominions.  Without  bearing  in  mind  this  undeniable  fact  we  run 
the  risk  of  regarding  the  conquest  and  colonization  of  the  Spanish 
America,  but  as  a spiritual  work  in  which  the  political  power  of  the 
monarchs  of  Spain  becomes  eclipsed  before  the  activity  and  apostolical 
zeal  of  the  missionaries.  It  is  not  necessary  to  repeat  that  at  the  time, 
and  especially  in  the  countries  treated  of  here,  the  preaching  and 
propagation  of  the  faith  was  inter  instrumenta  regni  with  this  cir- 
cumstance is  connected  the  one  of  which  we  spoke  before,  and  which 
refers  to  that  kind  of  solidarity  between  Church  and  State  which  ex- 
isted in  Mexico  under  the  Colonial  Government,  and  a long  time  after 
that  country  became  independent. 


30 


THE  HAGUE  COURT  REPORTS 


A 


I 


This  can  not  be  easily  understood  by  those  who  profess  and  prac- 
tice the  religious  theory  which  recognizes  Christ  only  as  the  head  of 
the  Church;  but  in  some  Catholic  and  monarchial  countries  in  the 
eighteenth  century  there  was,  besides  the  visible  head  represented  by 
the  pope,  a certain  ecclesiastical  and  spiritual  authority  invested  in  the 
temporal  sovereigns,  and  to  the  exercise  of  this  authority  correspond 
the  prerogatives  which  the  Spanish  King  defended  with  so  great  a 
zeal  and  which  the  Government  of  Mexico  inherited  and  enjoyed  for 
some  time  under  the  name  of  royalty.  From  the  two  facts  just  men- 
tioned two  consequences  are  derived  which  are  very  material  in  this 
case. 

1st.  That  it  was  very  easy  at  that  time,  owing  to  the  duality  of  func- 
tions which  the  civil  power  performed,  to  take  as  acts  and  work  of  a 
religious  character  much  that  was  done  in  the  exercise  of  the  political 
and  temporal  power. 

2d.  That  the  Spanish  as  well  as  the  Mexican  Catholic  Church  were 
of  a national  character,  from  which  it  follows  that  even  if  it  be  proved 
' that  the  missions  of  California,  their  dotation  and  administration  were 
within  the  sphere  of  the  Church,  it  could  not  be  claimed,  as  these 
claimants  do,  that  the  present  American  Catholic  Church  of  Upper 
California  is  the  heiress  and  continuator  of  the  Mexican  Catholic 
Church. 

This  idea  will  be  developed  further  on,  when  we  shall  demonstrate 
that  in  the  institution  and  in  the  resources  to  which  this  case  refers 
not  only  the  temporal  interest  prevailed,  but  the  material  also.  It  will, 
however,  be  well  to  state  now  in  corroboration  of  what  has  just  been 
' said,  thati^^  When  Mexico  was  mutilated  by  the  separation  of  Upper 
California,  the  system  was  still  in  force  there  according  to  which  the 
V first  magistrate  of  the  nation  was  a functionary  of  the  religious  ordeiw 
\who  intervened  in  the  appointment  of  bishops,  who  exercised  a kind 
of  veto  in  regard  to  the  ecclesiastical  laws,  and  who,  in  short,  was  in  a 
thousand  ways  incorporated  in  the  administration  of  the  Catholic 
Society.  The  latter  having  been  essentially  Mexican  in  Mexico,  it 
must  be  recognized  that  when  the  political  power  of  that  country  sus- 
tained the  loss  imposed  by  the  treaty  of  Guadalupe,  a similar  loss  was 
suffered  by  the  Catholic  Church  of  Mexico,  and  tha^as  the  Govern- 
ment withdrew  from  California,  New  Mexico  and'Texas,  so  the 
Catholic  Church  of  the  Republic  also  withdrew  carrying  with  it  its 
own  elements  of  life  and  development?) 

This,  which  is  natural,  is  proved  by  some  facts  brought  to  our 
knowledge  by  the  claimants  themselves,  such  as  the  reconstruction 


THE  PIOUS  FUND  CASE 


31 


which  the  Catholic  Church  has  been  obliged  to  undergo  in  Upper 
California  by  being  organized  in  conformity  with  the  laws  of  the 
United  States  in  the  matter  of  corporations.  The  one  which  now  ex- 
ists there  with  the  name  of  Catholic  Church  is  not  the  one  which  the 
Viceroy  of  Mexico  founded  with  the  assistance  of  the  Society  of 
Jesus.  So  that  even  if  we  see  in  the  interests  claimed  in  this  case  a 
thing  belonging  to  the  Church,  the  claim  could  not  be  established  by 
the  American  Catholics  of  Upper  California.  But  this  is  doubly  true 
because,  as  we  said  before,  from  a historical  and  philosophical  point 
of  view  the  political  and  temporal  character  predominated  in  the 
missions  in  question. 

When  they  were  planned  and  began  to  be  founded  the  Spanish  Gov- 
ernment did  not  appear  even  in  the  mere  character  of  propagator  of 
the  faith  which  in  certain  cases  is  assumed.  At  that  time  it  had  not 
been  recognized  yet  that  the  political  machine  is  not  a good  instru- 
ment for  the  propagation  of  religious  truth.  Indeed  the  rights  of 
Spain  in  the  American  continent,  based  upon  the  bull  of  Alexander 
the  Sixth  were  conditioned  on  the  propagation  of  the  catholic  religion. 
The  acts  of  the  Spanish  monarch  and  of  his  delegates  in  America, 
then,  seemed  at  times  to  have  a tendency  towards  that  end  only,  but 
in  this  matter  things  went  on  in  a different  way,  and  the  viceroys  de- 
clared without  the  least  hesitation  that  they  accepted  the  cooperation 
of  the  Jesuits  to  extend  the  dominions  of  the  Crown.  Not  only  in  the 
principle,  but  in  the  execution,  the  characteristic  traits  of  the  under- 
taking are  revealed,  as  is  also  the  transformation,  so  to  say,  to  which 
the  missionaries  were  subjected  by  being  converted  into  civil  magis- 
trates and  military  chiefs  to  carry  out  the  work  which  the  Colonial 
Government  had  authorized  them  to  do.  It  was  when  this  work  was 
in  the  course  of  execution,  when  there  existed  in  California  some 
establishments  whose  relations  [were]  much  closer  with  the  Viceroy 
and  the  King  of  Spain  than  with  the  Archbishop  of  Mexico,  and  could 
not  escape  notice,  that  several  donations  were  made  for  the  purpose 
of  maintaining  those  establishments  and  others  of  the  same  kind ; and 
in  some  instances  the  donor  explained  in  an  equivocal  manner,  that 
it  was  one  of  his  desires  to  contribute  to  the  enlargement  of  the  do- 
minions of  his  sovereign.  It  can  be  demonstrated  in  a thousand  ways 
that  the  missions  to  which  this  case  refers  did  not  constitute  an  ec- 
clesiastical and  local  corporation;  but  that  they  were  derived  from 
the  Government  of  Mexico,  their  objects  being  in  relation  with  the 
general  interests  and  with  the  customs  of  the  country.  Certain  it  is 
that  one  of  those  objects  was  the  conversion  of  the  natives  to  Chris- 


32 


THE  HAGUE  COURT  REPORTS 


tianity;  but  this  is  not  the  end,  nor  the  predomin^  or  exclusive  in- 
terest which  appears  in  the  historical  monuments.  ,ilt  was  pointed  out 
before  that  the  Jesuits  made  application  for  the  license  to  found  the 
missions  not  to  their  superiors  in  the  ecclesiastical  order  but  to  the 
civil  authority,  and  that  the  latter  granted  the  permission  in  the  form 
of  an  arrangement,  in  which  the  purpose  of  extending  and  consoli- 
‘ating  the  dominions  of  Spain  appear^ 

If  the  present  Catholics  of  California  think  that  they  are  entitled 
to  the  means  organized  for  that  purpose  they  might  in  the  same  way 
claim  the  revenues  of  which  the  Spanish  and  the  Mexican  Govern- 
ments made  certain  expenses  to  plant,  develop  and  maintain  the  power 
of  the  Government,  and  the  civil  administration  in  the  Californias 
(Exhibits  Nos.  3,  4 and  5 of  defensive  evidence). 

There  was  in  the  original  acts  stated  and  alleged  by  these  claimants 
an  undertaking  of  the  temporal  power  in  which  the  latter  took  the 
Jesuit  missionary  as  an  instrument.  See  the  preamble  in  the  authoriza- 
tions and  orders  given  to  them  (Exhibit  No.  21)  and  it  will  be  noticed 
that  the  conquest  of  the  Californias  had  been  already  undertaken  with- 
out result  by  means  exclusively  political  and  military,  and  that  the 
arrangement  between  the  Viceroy  of  Mexico  and  the  Society  of  Jesus 
was  the  continuation  of  the  same  attempt  with  different  means,  to  the 
power  exclusively  physical  which  had  failed,  they  sought  to  add  the 
moral  ascendancy  of  the  missionaries  and  the  pecuniary  means  with 
whose  collections  the  Jesuits  had  been  entrusted,  with  a view  to  profit 
by  their  peculiar  skill  in  the  matter.  The  documents  which  had  been 
cited,  in  which  the  preparatory  steps,  provisions  and  regulations  favor- 
ing the  develop«nent  of  the  new  plan  are  seen,  plainly  show  that  the 
minds  of  those  who  contributed  to  its  conception  and  execution  took 
less  interest  in  the  philanthropic  and  abstract  object  of  converting  and 
civilizing  heathen  barbarians,  than  in  the  result,  much  more  positive 
and  politic,  of  reducing  the  natives  of  California,  and  of  incorporating 
them  with  the  other  subjects  of  Spain.  All  the  authorizations  given 
to  the  Jesuits,  refer  to  points  of  authority  and  government. 

In  examining  this  point,  the  document  marked  No.  21  in  the  de- 
fensive evidence,  must  be  read  in  all  its  parts.  It  contains  the  author- 
ization or  arrangement  between  the  Viceroy  of  Mexico  and  the  So- 
ciety of  Jesus,  to  prosecute  the  conquest  of  the  Californias,  which 
had  been  attempted  and  suspended.  The  Viceroy  states  that  the  neces- 
sity of  making  extraordinary  expenses  on  account  of  an  insurrection 
in  the  colony,  prevented  the  drawing  of  resources  from  the  royal 
treasury  for  an  enterprise  in  which  $225,000  had  been  already  ex- 


THE  PIOUS  FUND  CASE 


33 


pended  without  fruit,  and  in  consideration  of  that  he  accepts  the 
proposition  that  the  expenses  of  the  new  attempt  to  submit  the  natives 
of  California  should  be  met  through  the  assistance  which  several  per- 
sons had  offered.  But  further  down  and  indeed  in  every  line  of  the 
document,  it  is  given  to  be  understood  that  the  work  proposed  was 
nothing  else  than  the  continuation  of  the  conquest  attempted  before. 
The  license  reads : “to  go  into  the  interior  to  make  the  conquest  and 
reduction  of  the  infidels.” 

The  services  rendered  by  the  auxiliaries  of  the  missionaries  were 
considered  as  services  done  in  war,  and  of  the  same  character  as 
those  rendered  in  the  conquests  already  achieved.  The  document  con- 
tains the  express  clause  that  all  the  conquests  should  be  made  in  the 
name  of  His  Majesty. 

The  question  being  conquests  and  operations  of  war,  the  power  of 
organizing  and  taking  soldiers,  of  appointing  and  removing  officers, 
and  of  issuing  the  necessary  orders  “in  the  service  of  His  Majesty” 
was  included  in  the  authorization.  After  making  provisions  in  re- 
gard to  the  objects  of  conquests,  the  document  provides  for  the  or- 
ganization of  the  new  colony,  and  the  monks  are  empowered  to  ap- 
point, “in  the  name  of  His  Majesty,”  authorities  who  should  admin- 
ister justice,  and  to  whom  the  newly  conquered  subjects  should  yield 
obedience.  All  this  is  done  without  prejudice  to  the  approval  of  the 
sovereign  and  with  the  incentive  of  his  gratitude,  which  is  a most  elo- 
quent indication  that  it  was  the  question  of  his  services. 

All  the  acts  of  the  missionaries,  after  they  arrived  in  the  territories 
where  the  new  plan  of  conquest  was  to  be  developed,  have  the  char-^ 
acter  of  a civil,  political  and  military  undertaking.  Before  they  planted 
the  cross  in  the  territory  of  California,  the  flag  of  the  King  of  Spain 
was  hoisted,  and  all  subsequent  steps  were  directed  less  to  establish 
the  pulpit  and  the  preaching,  than  to  organize,  according  to  the  in- 
struction of  the  viceroys,  the  military  and  civil  power  of  which  the 
Jesuits  were  the  delegates,  to  take  possession  of  the  land  in  the  name 
of  the  monarch,  to  fortify  the  places  occupied,  to  attract  there  sub- 
jects rather  than  neophytes,  and  to  appoint  and  establish  judges,  and 
other  functionaries  of  the  civil  and  political  order. 

In  regard  to  this  are  also  historical  monuments  which  can  be  seen 
in  the  defensive  evidence.  One  of  them  is  the  letter  copied  in  docu- 
ment No.  22.  In  it  we  see  the  narrative  of  a true  conquest  and  the 
proper  terms  used,  the  missionaries  giving  to  themselves  the  name  of 
conquerors.  Relating  their  success,  they  state  Cpage  17)  that  “all  that 
land  had  been  conquered,  not  converted  by  a few  Spaniards.” 


34 


THE  HAGUE  COURT  REPORTS 


It  is  useless  to  dwell  upon  the  demonstration  that  the  undertaking 
instructed  to  the  missionaries  of  the  Society  of  Jesus  and  carried  on 
by  them,  was  nothing  else  than  an  extension  of  the  Spanish  posses- 
sions in  America.  Although  it  was  stipulated  at  the  beginning  that 
the  expenses  of  the  work  should  be  met  by  private  donations  and  that 
the  conqueror  could  not  draw  against  the  royal  treasury  without  pre- 
vious consent  of  the  sovereign,  some  expenses  were  made  by  the  public 
treasury,  and  even  the  viceroys  sometimes  gave  assistance  out  of 
their  own  money.  Thus  it  is  that  we  see  in  everything  the  religious  and 
temporal  ends  and  means  confounded,  the  latter  prevailing  in  most  of 
the  cases.  The  undertaking  did  not  lose  its  original  character  in  the 
course  of  time.  It  being  attempted  in  1697,  twenty  years  later,  the 
missionaries  and  their  armed  auxiliaries  were  “very  especially  recom- 
mended to  attend  to  the  advancement  of  that  conquest”  (document 
No.  27,  page  13^).  For  that  purpose  it  was  called  to  mind  (page  2) 
that  the  former  arrangements  had  for  their  object  “the  discovery  of 
the  provinces  of  the  Californios  and  the  conversion  of  the  Indians.” 
Here  we  see  again  the  political  object  fraternizing  with  the  religious 
zeal,  if  not  palliated  by  it.  The  latter  is  also  spoken  of  in  other  docu- 
ments, and  it  certainly  exercises  a great  influence  at  the  time  that  con- 
quest was  undertaken,  because  the  habits  and  the  feelings,  sincere  or 
affected,  of  the  Spanish  monarchs  so  required. 

Boasting  of  being  delegates  of  God,  they  had  to  show  their  zeal  by 
sending  him  the  souls  of  their  subjects.  It  suited  those  times  to  mix 
in  everything  religion  with  politics.  This  alliance,  which  was  very 
close  in  the  Spanish  colonies  of  America,  is  also  observed  in  those  of 
a different  origin.  Even  in  the  original  colonies  which  gave  birth  to 
the  United  States,  we  can  point  out  works  and  objects  of  a religious 
character  in  the  bosom  of  establishments  which  had  nothing  to  do  with 
the  Church,  and  which  were  no  more  than  a derivation  of  the  civil 
power.  Some  of  the  first  enactments  in  those  colonies  had  a tendency 
to  defray  the  expenses  of  public  worship;  in  others  the  political  ca- 
pacity of  those  who  did  not  belong  to  any  Church,  was  declared  as  a 
fundamental  measure. 

In  the  charter  of  James  the  First  to  the  Colony  of  Virginia,  it  was 
explicitly  ordained  that  religion  should  be  established  according  to 
the  doctrines  and  rights  of  the  English  Church,  and  that  the  emi- 
grants should  owe  fidelity  to  the  King  and  to  his  creed.  And  cer- 
tainly it  would  not  occur  to  anybody,  if  in  consequence  of  some  human 


^Not  printed. 


THE  PIOUS  FUND  CASE 


35 


iiecessitude  a part  of  the  United  States  would  pass  to  another  nation, 
to  pretend  that  the  territory  so  lost  should  carry  with  itself  as  a 
dotation,  the  resources  which  had  served  at  a remote  time  to  lay  the 
foundation  of  the  political  and  the  religious  institutions.  All  the 
ancient  documents  which  have  been  accumulated  in  this  case  pro- 
claimed that  the  Government  of  the  viceroy  first,  and  afterwards  the 
Republican  Government  of  Mexico  were  the  supreme  authority  in 
regard  to  the  missions  of  the  Californias.  Notwithstanding  that  the 
said  missions  were  entrusted  to  monks  and  ecclesiastical  functionaries, 
the  character  of  civil  delegates  which  the  latter  had  from  the  begin- 
ning was  continued  afterwards,  and  we  see  the  Government  regulating 
and  controlling  everything. 

The  sovereign,  the  viceroy,  the  president  of  the  Republic,  the  inter- 
ests of  nationality  and  politics,  always  predominate  as  influence,  as 
purpose,  as  principal  end.  In  all  the  stages  through  which  the  mis- 
sions passed,  we  see  the  Government  act,  in  regard  to  them,  as  a 
superior  authority  by  virtue  of  one  of  his  rights,  which  was  recog- 
nized by  the  Jesuits,  the  Femandinos,  the  Dominicans  and  even  by 
the  Bishop  of  California,  created,  in  a certain  way,  by  the  Govern- 
ment of  the  Republic.  What  can  lead  one  into  error  is  that  in  the  first 
days  of  the  conquest,  and  for  many  years  afterwards,  the  Government 
had  not  in  California  any  other  delegates  than  the  missionaries.  It  is 
not  before  the  24th  of  May,  1832,  that  we  meet  with  a law  enacted 
to  send  civil  commissioners  to  California  to  put  the  local  administra- 
tion in  harmony  with  the  new  forms  which  the  Government  and  the 
general  administration  of  the  country  had  adopted.  This,  however, 
did  not  produce  a divorce  between  the  two  orders  of  administration, 
and  the  civil  Government  retained  the  superior  and  exclusive  authority 

(which  [ft]  had  exercised  in  regard  to  the  fund  of  the  missions.  Simul- 
taneous with  the  above  cited  law,  was  the  one  issued  on  the  25th  of 
May,  and  published  on  the  1st  of  June  of  the  same  year,  in  which 
provisions  were  made  in  relation  to  the  lease  of  the  estates  in  which 
the  said  fund  consisted,  and  a commission  of  three  persons  appointed 
for  the  management  of  said  fund. 

On  November  29th  of  the  same  year,  we  see  the  Government  order- 
ing the  alienation  of  the  houses  situated  in  Vegara  Street,  and  in 
Belemitas  Alley.  Soon  afterwards  (January  23,  1833)  the  same  Gov- 
ernment thought  it  proper  to  revoke  the  order  relative  to  the  aliena- 
tion. On  the  24th  of  the  same  month  and  year,  it  approved  the  regu- 
lations for  the  administrative  board  it  had  created.  On  March  16, 
^ 1833,  it  issued  new  orders  in  relation  to  the  lease  of  the  estates;  and 


36 


THE  HAGUE  COURT  REPORTS 


in  all  those  laws,  and  especially  in  that  which  organized  the  admin- 
istrative board,  and  in  the  said  regulations,  it  appears  that  the  Govern- 
ment acted  as  the  superior  authority  in  the  matter,  and  that  [which] 
was  called  the  fund  of  California  was  no  longer  but  an  especial  fund 
which  the  same  Government  had  created,  in  the  bosom  of  the  public 
treasury,  to  serve  to  certain  objects. 

And  there  is  no  reason  to  regard  those  acts  and  measures  as  usur- 
pations. Especially  after  the  expulsion  and  extinction  of  the  Society 
of  Jesus,  the  Government  of  Mexico  had  to  substitute  itself  in  the 
place  of  that  society  and  to  continue  to  act  in  the  matter  with  such  ful- 
ness of  authority  as  the  missionaries  could  never  have.  The  Govern- 
ment not  only  withdrew  the  faculty  which  the  Jesuits  had  received 
from  the  principal  contributions  to  the  fund  of  California  to  admin- 
ister and  invest  funds  without  giving  account;  but  it  added  to  that 
faculty  of  private  origin  those  which  were  inherent  in  the  public 
power,  either  by  virtue  of  the  eminent  domain,  by  the  character  of 
the  institution,  or  by  the  part  which  in  regard  to  the  latter  the  tem- 
poral government  had  always  exercised. 

Exhibit  No.  25  throws  much  light  on  the  character  of  the  fund  after 
the  extinction  of  the  Jesuits,  as  it  contains  a report  made  to  the  King 
of  Spain  upon  the  matter.  In  that  report  we  find  the  confirmation 
of  the  fact,  that  to  a certain  degree,  the  civil  administration  and  the 
temporal  interest  were  interwoven  with  the  missions,  that  the  mis- 
sionaries had  been  the  chiefs  of  the  conquering  forces,  and  that  their 
commission  had  for  its  principal  object  to  further  the  conquest  of 
America  ‘‘without  leaving  behind  any  Indians  unreduced."  (Sin  dejar 
Indiis  por  reducir  d la  espalda.) 

All  the  antecedents  above  referred  to  serve  to  illustrate  this  sub- 
ject, but  they  could  not  in  any  case,  taking  their  date  into  considera- 
tion, be  a proper  matter  for  reclamation  on  the  part  of  the  present 
Catholics  of  California.  The  claim  put  forward  by  them  through  their 
bishops  derived  from  the  orders  dictated  by  the  public  powers  in 
Mexico  in  the  year  1842  definitively  incorporating  the  fund  in  ques- 
tion in  the  public  treasury  and  constituting  on  one  of  the  revenues. 
[5-ic.] 

Keeping  in  mind  all  the  history  of  the  fund,  we  see  that  its  char- 
acteristic nature  did  not  change  after  the  new  aspect  which  the  said 
orders  gave  it.  'Nothing  has  been  more  common  in  Mexico,  as  well 
as  in  other  countries,  than  to  assign  certain  funds  and  especial  guar- 
antees for  the  supports  of  institutions  and  other  proper  matters  of 
civil  administration..  Colleges,  hospitals,  and  other  like  establish- 


THE  PIOUS  FUND  CASE 


37 


ments  have  jDeen  founded  and  sustained  in  that  way.  At  the  present 
time  there  exists  in  Mexico  an  especial  fund  inlaid  in  the  revenues  of 
the  federation  and  intended  to  pay  interests  for  capitals  invested  in  the 
Vera  Cruz  railroad.  So  that  the  legislative  acts  which  the  claimants 
regard  as  their  fundamental  argument  and  the  basis  of  their  allega- 
tions, do  not  in  the  least  deprive  the  fund  of  its  character  of  temporal 
and  national  interest,  which  could  not  be  transmitted  to  the  American 
Church  of  California  when  this  province  became  a possession  of  the 
United  States. 

There  are  in  the  history  of  this  affair  two  very  marked  periods 
which  are,  to  a certain  extent,  different.  The  first  is  when  the  Jesuits 
administered  the  fund  of  the  missions,  which  they  did  with  a certain 
degree  of  independency  and  freedom,  limited  by  the  interference  of 
the  Government.  But  after  the  Jesuits  were  expulsed  and  extin- 
guished, the  Government  is  all  in  the  matter.  If  some  ecclesiastical 
functionaries  have  to  interfere  in  it,  that  interference  is  altogether  the 
work  of  delegation. 

^^At  the  time  of  the  establishment  of  the  bishopric  in  California,  the 
/bishop  received  the  said  fund  from  the  hands  of  the  Government,  and 
R 'that,  not  by  a virtue  of  a bilateral  contract,  but  in  consequence  of  a 
l\  decree  which  could  be,  and  was  revoked  by  the  same  power  which 
X^sued  it.  The  resistance  made  by  the  bishop  of  California  against 
the  revocation  of  said  decree,  and  which  is  now  alleged  as  an  argu- 
ment by  the  American  bishops  of  that  country,  was  very  natural  on 
the  part  of  a functionary  who  considered  the  fund  of  the  missions  as 
the  principal  support  of  his  office,  and  who  not  making  a right  appli- 
cation of  those  resources  applied  them  in  part  to  the  especial  objects 
of  the  local  Church  and  worship.  But  that  resistance  was  without 
reason  or  precedents. 

did  not  occur  to  any  prelate  of  the  Mexican  Church  to  protest 
against  the  action  of  the  Spanish  Government  when  the  latter  re- 
ceived the  fund  of  California  from  the  hands  of  the  expulsed  Jesuits 
.^^and  commenced  to  manage  it  through  the  officers  of  the  crown.  The 
delegation  made  in  favor  of  the  Dominicans  and  Fernandinos  was  ac- 
cepted by  them  as  a gracious  act.  Neither  did  the  Republican  Govern- 
ment of  Mexico  hear  any  censure  or  protest  when  it  established  some 
of  the  civil  forms  in  which  the  fund  was  administered. 

Nobody  said  a word  against  the  law  of  May  25,  1832,  for  in- 
stance, which  created  the  administrative  board.  All  those  acts  of  the 
civil  power  not  only  passed  without  contradiction  on  the  part  of  the 
ecclesiastical  authority,  but  were  assented  to  and  approved  by  docu- 


38 


THE  HAGUE  COURT  REPORTS 


merits  and  facts.  It  could  not  be  otherwise,  for,  as  was  pointed  out 
above,  the  judges  who  decided  certain  cases  instituted  by  the  suc- 
cessors of  the  contributors  to  the  fund  of  California  declared  that 
the  latter  remained  at  the  disposal  of  the  Government;  and  this  is 
the  reason  why  we  see  its  products  collected  as  the  other  national  rev- 
enues and  the  expenses  of  the  missions  confounded  with  those  of  the 
civil  administration  of  California  in  the  budget  of  the  Republic.  This 
case  not  only  promises  data  to  maintain  that  the  interest  to  which 
the  claim  refers  was  a temporal  concern,  not  depending  upon  the 
Church,  but  it  also  contains  abundant  proof  that  that  interest  was  a 
national  and  Mexican  one,  incapable  of  being  transmitted  to  another 
nationality  as  an  appendage  of  a territory  ceded.  The  decrees  of  the 
8th  of  February  and  24th  of  October,  1842,  declared  the  objects  of 
the  fund  national  and  “subject  to  the  administration  of  the  Govern- 
ment as  they  had  been  before.”  The  author  of  this  opinion  does  not 
think  it  necessary  to  discuss  the  point  so  unseasonably  raised  by  these 
claimants  and  relative  to  the  declarations  of  nationalization  made  by 
some  administrations  and  to  the  censure  the  latter  have  incurred  there- 
by, because  what  is  important  in  this  case  is  to  ascertain  the  fact,  not 
the  right.  If  the  declarations  made  by  the  Government  of  Mexico  in 
1842  were  unjust  and  injurious,  no  complaint  can  be  made  on  that 
account  in  the  United  States  after  the  treaty  of  Guadalupe,  still  less 
before  this  commission  the  chronological  starting  point  of  whose 
powers  is  the  2d  of  February,  1843.  What  it  is  important  to  know 
under  the  circumstances  of  the  case  is  that  those  declarations  existed, 
/ and  that  in  fact  anc^^cording  to  the  Mexican  law  the  interest  rep- 
V resented  by  what  was  called  the  “Pious  Fund  of  California”  was  in- 
Vcorporated  and  identified  with  the  nationality  of  Mexico^ 

Studying  the  history  of  this  affair  with  impartiality  it  can  be  per- 
ceived that  in  the  means  to  which  the  claimants  refer  there  was  not 
only  a national  character  proper  of  interest  and  rights,  so  to  say, 
Mexican,  but  a general  character  which  was  not  confined  to  the 
locality  of  California.  The  document  marked  with  No.  8 in  the  de- 
fensive evidence  and  with  No.  28  in  the  list  of  papers  of  the  case,  be- 
sides showing  (page  7)  as  above  said,  that  the  erogations  of  the  public 
treasury  and  the  contingents  of  individuals  mingled  together  in  the 
conquest  and  the  civilization  of  the  Californias,  also  proves  (pages  24 
and  25)  thal^pie  missions  by  which  the  first  civil  administration  of 
^ those  provinces  was  really  established,  were  not  considered  as  an  in- 
stitution strictly  local.  That  they  were  regarded  as  an  instrument 
eventually  applicable  in  the  conquest  of  Sonora  and  which  implied  the 


THE  PIOUS  FUND  CASE 


39 


I purpose  of  consolidating  the  Spanish  rule  in  those  regions,  “not  leav- 
I ing  behind  any  Indian  nation  unreduced  or  not  subject  to  the  royal 
\ dominioi^ 

^^In  the  report  cited  above,  which  can  be  seen  in  document  No.  25, 
the  views  of  nationality  and  of  precaution  against  the  dismemberment 
which  Mexico  sustained  at  a later  time,  views  which  were  closely  con- 
nected with  the  missions  of  the  Californias,  take  the  most  energetic 
expression.  Speaking  of  the  origin  and  object  of  the  Pious  Fund  the 
/Tsaid  report  reads  as  follows;  “After  deploring  that  the  patriotism  an^^ 
"charity  of  those  who  contributed  to  the  formation  of  the  said  fund 
have  no  imitators,  there  is  no  one  to  devote  himself  to  solicit  other 
benefactors  like  the  Marquis  de  Villa  Puente,  his  wife  Dona  Gertrudis 
de  la  Pena,  the  Marchioness  de  Forres  de  Rada,  Don  Juan  Caballero, 
Don  Nicolas  de  Aniage,  his  Excellency  Don  Luis  de  Velasco,  the 
Jesuit  Juan  Maria  de  Luyando  and  her  Excellency  Dona  Maria  de 
Borja,  who  founded  the  fund  with  their  large  alms,  they  being,  there- 
fore, the  true  agents  of  the  propagation  of  the  faith  in  the  Peninsula 
of  California,  and  of  the  extension  of  the  royal  dominions  of  His 
Majesty,  as  they  prevent  the  latter  from  being  occupied  by  forei 
Powers,  as  is  intended  in  regard  to  our  ancient  Spanish  possessions. 

After  the  establishment  of  the  Republican  Government  in  Mexico, 
the  views  of  the  parties  contending  for  power  differed  sometimes 
after  the  alienation  of  the  property  which  constituted  the  oft-repeated 
fund ; but  they  united  in  the  conviction  that  the  work  of  the  missions, 
or  more  properly  speaking,  of  the  conquest  of  California  by  means  of 
the  missionaries,  tended  as  the  principal  of  its  ends,  towards  the  con- 
solidation of  the  Mexican  nationality  in  the  Western  States.  These 
claimants  have  alluded  to  the  memoir  of  the  Minister  of  Justice  pub- 
lished in  Mexico  in  the  year  1843.  We  see  there,  in  fact,  that  the 
administration  which  succeeded  that  of  General  Santa  Anna,  deposed 
by  a popular  rising,  censured  the  measures  taken  by  that  President  in 
regard  to  the  fund  of  California;  but  in  the  same  document  the  na- 
tional and  autonomical  objects  of  that  fund,  which  made  it  to  be  re- 
garded as  sacred,  are  again  asserted.  The  Minister  of  Justice  de- 
plored that  the  instrument  with  which  the  Spanish  Government  had 
been  able  to  build  a wall  against  the  barbarism  of  the  Indians  and  the 
cupidity  of  some  enlightened  neighbors,  was,  so  to  say,  broken  in  his 
hands.  That  functionary  recording  the  fact  that  there  were  no  longer 
any  missionaries  who  could  continue  the  work  of  the  ancient  religious 
orders,  wrote  these  words;  “It  is  a matter  of  regret  to  the  Govern- 
ment not  to  find  in  our  cloisters  the  apostolical  enthusiasm  of  their 


40 


THE  HAGUE  COURT  REPORTS 


former  founders;  but,  unfortunately,  it  is  a palpable  fact  that  for 
want  of  missionaries  the  missions  have  been  diminishing  in  number; 
according  to  last  year’s  memoir  there  are  in  the  Republic  six  colleges 
for  the  propagation  of  the  faith,  seven  colleges  with  but  87  priests  who 
have  under  their  charge  36  missions  and  their  respective  convents, 
for  which  reason  it  is  clear  that  not  even  two  priests  can  be  assigned 
to  each  place.  The  Californias  which  have  been  considered  as  a gem 
of  inestimable  value,  suffered  much  for  want  of  ministers ; it  was 
thought  that  a bishop  placed  in  those  territories  would  provide  with 
simple  remedies  which  the  distance  from  Mexico  prevents  from  dic- 
tating and  would  be  a new  support  of  the  nationality  of  the  Republic 
agahist  the  political  specidations  of  cabinets  who  propose  to'  prosper 
at  the  expense  of  our  negligence  and  blunders. 

Here  are  revealed  in  a few  lines  the  views  which  were  entertained 
in  treating  of  the  missions  of  California  and  in  collecting  and  employ- 
ing the  means  with  which  they  were  maintained.  When  the  Govern- 
ment of  Mexico  ordered  the  alienation  of  the  property  in  which  that 
fund  consisted  and  whose  value  and  products  were  diminishing  year 
after  year;  when  it  incorporated  the  fund  in  the  national  treasury, 
when  it  assigned  an  interest  guaranteed  by  a public  revenue,  it  did 
not  intend  to  serve,  nor  did  it  serve  in  fact,  but  to  national  and  political 
objects,  with  which  were  combined  in  a second  degree  the  civilization 
and  conversion  of  the  natives. 

The  loss  which  Mexico  sustained  at  a later  time  when  she  was 
mutilated  of  a province  which  has  become  in  a few  years  one  of  the 
most  flourishing  States  of  the  American  Union  and  which  has  just 
saved  the  United  States  from  a terrible  financial  crisis,  had  been  long 
foreseen,  and  the  creation  of  a bishopric  there  and  the  organization 
of  the  means  which  were  put  in  the  hands  of  the  Bishop,  had  no  other 
object  than  to  make  tighter  the  bonds  between  the  Californias  and 
Mexico,  which  the  sword  of  a neighboring  nation  was  to  sever  soon 
afterwards.  [ It  would  be  very  strange  that  those  means  created,  or- 
ganized and  administered,  well  or  badly,  to  save  the  integrity  of  the 
i Mexican  Republic,  should  pass  into  the  hands  of  the  people  who  suc- 
\ ceeded  at  last  in  snatching  some  of  her  most  covetable  district^  To 
pretend  this,  after  Mexico  has  been  deprived  of  Upper  California,  is 
tantamount  to  ask  that  a quarter  of  a century  after  that  loss  she 
should  surrender,  also,  to  the  victor  one  of  the  arms  with  which  she 
defended  her  integrity. 

And  that  national  and  patriotic  spirit  which  notoriously  animated 
the  Mexican  Government  in  the  arrangements  alluded  to  was  partici- 


THE  PIOUS  FUND  CASE 


41 


pated  in  by  the  individuals  whose  donations  contributed  to  the  forma- 
tion of  the  fund  of  California.  It  has  been  said  above  that  those  con- 
tingents came  after  the  missions  had  been  organized  under  the  license 
of  the  viceroy  with  views  the  political  character  of  which  can  not  be 
denied  without  giving  the  lie  to  history.  Taking  into  account  the 
spirit  of  the  times  and  of  the  nation  to  which  the  donors  belonged, 
reflecting  upon  the  position  they  occupied,  studying  the  words  in  which 
they  speak  of  the  missions  founded  in  this  kingdom  and  allude  to  the 
service  of  the  sovereign  and  to  the  extension  of  his  dominions,  it  must 
be  acknowledged  that  it  could  not  be  in  the  minds  of  those  who  pro- 
moted with  their  liberality  the  first  missions  in  California,  to  found 
resources  to  be  profited  by  an  ecclesiastical  corporation  within  the, 
nationality  of  the  United  States.  Certainly,  neither  the  Marquis  de 
Villa  Puente,  the  Marchioness  de  Torres  de  Rada,  nor  the  Viceroy 
Velasco,  ever  thought  of  a foundation  which  was  not  national  in  its 
character,  like  that,  for  instance,  which  exists  in  the  United  States 
under  the  name  of  Board  of  Foreign  Missions.  It  has  been  said  be- 
fore and  it  is  proper  to  repeat  here  that  the  claimants  and  the  society 
which  they  represent  are  not  the  continuators  of  the  Mexican  Church 
originally  established  in  California.  To  the  foundation  of  that  Mexi- 
can Church  both  the  ecclesiastical  and  the  civil  power  contributed. 
These  are  the  facts  as  shown  in  the  historical  monuments,  and  this  is, 
on  the  other  hand,  what  answered  the  relations  at  that  time  existing 
between  the  Catholic  Church  and  the  Mexican  Government.  They  did 
not  revolve,  as  at  present,  in  spheres  without  contact ; there  was  some- 
thing of  reciprocal  intercourse  between  the  two  Powers;  the  one 
served  the  views  of  the  other;  and  the  Church  paid  for  the  exclusive 
protection  of  the  Catholic  religion  by  causing,  in  many  cases,  the  re- 
ligious institution  to  serve  the  objects  of  the  temporal  power,  as  we 
have  seen  in  the  case  of  the  first  missionaries  of  California  in  whom 
the  characters  of  priest  and  magistrate  were  confounded.  The  same 
Bishop  sent  to  California  in  1836  had  something  of  this  double  char- 
acter, not  only  on  account  of  the  part  which  the  Government  took 
in  his  appointment  and  institution,  but  because  he  went  there,  as 
the  above-cited  memoir  shows,  with  the  tacit  mission  of  strengthen- 
ing the  Mexican  nationality  in  that  part  of  the  Republic,  and  even  of 
endeavoring  to  better  a local  administration  which  the  arm  of  federa- 
tion could  not  reach  from  Mexico.  The  Mexican  Church  of  California 
is  of  an  ancient  date.  The  Catholic  Church  which  now  exists  there 
dates  from  1850,  as  the  same  claimants  state  in  order  to  prove  the 
American  nationality  of  the  corporation. 


42 


THE  HAGUE  COURT  REPORTS 


Many  other  considerations  could  be  added  to  those  which  precede; 
but  they  might  perhaps  weaken  the  evidence  of  the  fact,  which  is  as 
clear  as  daylight  in  the  mind  of  the  author  of  this  opinion,  that  the 
claimants  in  this  case  come  to  ask  that  Mexico  should  surrender  to 
them  a thing  which  is  properly  and  exclusively  national  and  which 
the  Mexican  Government  ought  to  have  carried  with  it  when  it  with- 
drew from  Upper  California. 

The  claimants  have  endeavored  to  pick  up  the  arms  which  a van- 
quished faction  abandoned  a long  time  ago  in  Mexico,  and  they  use 
them  against  the  Government  of  the  Republic,  complaining  of  some 
measures  dictated  and  carried  into  effect  by  it  in  regard  to  the  fund 
of  California.  In  the  indirect  complaints  about  this  matter  we  per- 
ceive the  echo  of  the  imputation  which  the  reactionary  party  in  Mexico 
has  made  to  the  liberal  reformers  on  account  of  certain  laws  relative 
to  the  property  which  was  formerly  administered  by  the  clergy  of 
that  country.  They  forget  that  the  progressive  steps  taken  by  Mexico 
in  the  direction  of  rendering  the  immense  mass  of  property  possessed 
by  the  clergy  alienable,  have  been  taken  following  the  example  set  by 
many  other  nations  in  their  efforts  towards  emancipation  from  theo- 
cratical  despotism.  They  forget  that  the  reforms  in  regard  to  the 
property  kept  by  some  Mexican  corporations  have  produced  the  fruit 
of  consolidating  the  constitution  of  the  country  by  putting  an  end  to 
the  revolutions  which  used  to  have  their  arsenal  in  the  barracks  and 
their  banker  in  the  ecclesiastical  administration.  But  they  forget 
above  all  that  it  was  not  even  the  Republican  Government  of  Mexico 
who  initiated  the  acts  from  which  the  situation  which  the  bishops  of 
California  assume  to  subvert,  arose;  that  it  was  the  Spanish  Govern- 
ment who  expulsed  the  Jesuits,  who  occupied  their  temporalities  in- 
cluding the  fund  of  California  which  they  administered,  and  who  com- 
menced to  make  use  of  the  free  administration  which,  for  all  the  rea- 
sons already  explained,  the  Government  of  the  Republic  continued  to 
exercise  afterwards. 

All  these  antecedents  gave  origin  to  the  condition  of  things  existing 
at  the  time  when  Upper  California  passed  into  the  hands  of  the 
United  States  by  virtue  of  the  treaty  of  Guadalupe.  The  two  nations 
which  made  war  first  and  then  peace  agreed  not  to  turn  their  eyes  to 
the  past,  forgetting  all  causes  of  complaint.  The  situation  against 
which  this  claim  is  directed  is  the  same  which  existed  at  the  time  of 
the  signature  of  the  treaty  of  Guadalupe.  This  act  was  preceded  by 
long  and  profound  debates  between  the  negotiators  in  regard  to  the 
manner  in  which  the  painful  amputation  which  Mexico  then  suffered 


THE  PIOUS  FUND  CASE 


43 


should  be  performed ; in  regard  to  which  muscles  and  nerves  should 
be  cut  and  which  should  be  left  in  the  mutilated  body.  If  the  transfer 
of  any  revenues  or  property  in  favor  of  the  new  territories  annexed 
to  the  American  Union  was  contemplated  at  the  time  of  the  conclu- 
sion of  said  treaty,  clauses  in  reference  to  that  matter  would  have  been 
introduced;  but  nothing,  absolutely,  was  said;  neither  was  there  any 
agreement  as  to  the  funds  which  the  religious  corporations  established 
in  California  had  administered  and  which  had  served  as  dotation  of 
the  bishopric.  The  state  of  things  in  1848,  was,  therefore,  definitively 
consecrated,  and  no  complaint  can  be  made  against  Mexico  on  the  part 
of  the  American  Government  or  of  its  citizens  with  a view  to  recon- 
struct the  situation  in  which,  for  instance,  the  Jesuits  were  when  they 
managed  the  fund  in  question,  or  that  in  which  the  Fernandinos,  the 
Dominicans  and  the  Bishop  Garcia  Diego  were  when  the  Government 
of  Mexico  delivered  to  them  the  products  of  the  property.  When 
Mexico  and  the  United  States  liquidated,  so  to  say,  their  accounts  in 
1843,  binding  themselves  not  to  look  in  the  past  for  any  cause  of  com- 
plaint and  reclamation,  the  fund  of  California  was  already  diluted  in 
the  national  revenues  of  the  Republic,  and  the  Government  of  Mexico 
had  only  decreed  some  subsidies  in  favor  of  the  ecclesiastical  function- 
aries who  served  it  as  auxiliaries  in  that  part  of  the  federation, 
r This  situation  the  claimants  want  to  alter  now,  and  they  want  also 
to  oblige  Mexico  to  pay^the  perpetual  tribute  of  a rent  to  certain 


American  corporations.  (Such  a thing  could  only  be  exact  if  it  had 


been  included  in  the  treaty  which  put  an  end  to  all  questions  which 
might  arise  between  Mexico  and  the  United  States  up  to  the  peace  of 


to  impose  upon  Mexico  could  only  exist  by  common  consent  of  the 
two  Governments ; but  far  from  such  a consent  having  ever  been  given, 
the  Government  of  Mexico  does  not  recognize  such  an  obligation  and 
protests  against  the  demand  tending  to  impose  the  same  upon  it. 

What  that  Government  has  done  in  another  case  as  a free  and  volun- 
tary act,  the  Bishops  of  California  want  now  to  exact  by  compulsion. 
When  the  Mexican  Government  made  with  that  of  Spain  the  agree- 
ment relative  to  the  fund  of  the  Philippine  Islands  the  onerous  part 
of  said  agreement  was  counterbalanced  by  some  useful  stipulations  in 
regard  to  claims  which  were  settled  by  said  agreement.  What  is  there 
common  between  this  and  that  which  the  claimants  pretend?  What 
do  they  give  Mexico?  What  do  they  offer  her  in  exchange  for  that 
kind  of  perpetual  annuity  which  they  want  to  secure  in  favor  of  their 
Churches  ? When  they  advance  this  pretension  accompanied  by  defer- 


After  that  peace  the  obligation  which  the  claimants  want 


44 


THE  HAGUE  COURT  REPORTS 


ences  and  renunciations  like  those  which  the  Spanish  Government 
made  at  the  time  of  the  arrangement  which  was  called  afterwards  the 
Convention  of  Father  Moran,  then  they  will  {have^  a right  to  cite  this 
act  as  a precedent,  and  that,  if  precedents  can  be  alleged  in  regard  to 
a subject  which  depends  only  upon  the  judgment  and  free  will  of  a 
Government. 

Many  are  the  differential  traits  between  the  two  affairs  which  the 
claimants  attempt  to  compare.  But  in  a certain  point  of  view  the 
^--^rg^ment  rebounds  on  them,  becauseuthe  same  fact  of  the  matter 
' relative  to  the  fund  of  the  Philippine  Islands  having  been  settled 

\ by  means  of  a convention  shows  that  the  consent  of  the  Govern- 

ment of  Mexico  was  required,^nd  that  the  claimants  have  mistaken 
the  way,  because  instead  of  presenting  this  demand  they  should  ask 
their  Government  to  initiate  near  that  of  Mexico  a convention  similar 
to  that  which  Spain  negotiated  in  the  case  above  alluded  to.  The 
Government  of  the  United  States  would  judge  if  it  was  agreeable  to 
it  to  take  such  a step,  and  Mexico  making  use  of  her  most  free 
sovereignty  would  say  if  she  was  disposed  to  admit  such  a pretension. 

If  the  demand  in  this  case  is  exorbitant  as  to  the  philosophical 
principle  on  which  it  is  founded,  it  is  no  less  so  in  regard  to  the  cal- 
culations made  by  the  claimants  in  order  to  ascertain  the  interest 
claimed.  As  to  this  p>oint  the  original  memorial  was  vague  and  inde- 
cisive; those  who  signed  it  really  own  that  they  did  not  know  what 
they  ought  to  claim  and  indirectly  gave  the  commission  the  charge, 
not  little  difficult,  of  finding  it  out.  In  the  course  of  the  case,  and  as 
new  data  and  documents  have  been  accumulated,  the  claimants  have 
fixed  their  ideas,  and  these  appear  at  last  translated  into  ciphers  on 
page  31  of  the  printed  argument.  The  point  of  departure  taken  there- 
in is  the  absorption  of  the  fund  of  California  in  the  Mexican  treasury 
on  February  3,  1842,  and  the  memorandum  which  the  Bishop  Garcia 
Diego  formed  on  that  occasion  regarding  the  importance  of  said  fund. 

Notwithstanding  that  that  news  contains  conjectures  rather  than 
facts,  and  that  let  to  perceive  the  inclination  to  increase  the  charge  of 
the  Government,  the  claimants  ascribe  to  that  document  a mathematical 
exactness,  calculating  the  rent  that  the  funds  already  appropriated  by 
the  Mexican  treasury  are  to  produce,  and  capitalizing  it  at  the  rate  of 
six  per  cent,  make  an  amount  of  $577,583.37.  [5'tV.] 

To  this  they  add  the  old  debts  in  favor  of  the  said  fund,  as  if  it 
was  a question  of  easy  matter  to  convert  into  money  at  any  time; 
and  in  this  way  they  raise  the  capital  to  one  million,  six  hundred  and 
ninety-eight  thousand,  seven  hundred  and  forty-five  dollars.  Upon 


THE  PIOUS  FUND  CASE 


45 


this  sum  they  charge  interest  since  the  year  1849,  and  by  virtue  of  this 
operation  they  fix  the  responsibility  of  the  Mexican  Government  at 
two  millions,  one  hundred  and  forty  thousand,  one  hundred  and  four 
dollars. 

They  have  behind  this  the  moderation  to  cede  one-tenth  of  the  sum 
for  the  missions  of  the  Lower  California,  and  in  this  manner  the  de- 
mand is  condensed  to  a determined  cipher. 

In  this  calculation,  as  it  has  been  said,  the  ground  itself  is  meager, 
and  fluctuating.  If  is  read  the  instruction  of  the  Attorney  Ramirez, 
to  whom  the  claimants  ascribe  as  much  infallibility  as  to  the  Pope,  it 
will  be  found  at  every  step,  that  the  author  of  that  work  wanted  docu- 
mental facts  in  regard  to  some  very  important  items,  but  when  so 
much  faith  is  given  to  the  informations  of  that  source,  the  bishops 
claiming  ought  not  to  have  forgotten  what  the  same  Ramirez  informed 
to  the  Government  of  Mexico,  three  days  before  the  issue  of  the  law 
which  incorporated  the  said  fund  in  the  public  treasury,  and  then,  they 
will  not  make  such  whimful  [jic.]  and  erroneous  accounts.  This  in- 
formation reads  at  the  foot  of  the  page  . . . among  the  last  docu- 

ments which,  copied  anew,  the  claimants  have  brought  to  the  commis- 
sion. It  reads  so : 

Excellent  Sir: 

The  Pious  Fund  of  Califomias  consists  of  three-quarter  parts 
of  the  hacienda  of  “Cienega  del  Pastor”  and  other  three-quarter 
parts  of  seventy  thousand  dollars  in  which  were  sold  in  em- 
phyteusis some  houses  of  Vergara  Street,  to  build  the  new  theater. 

The  hacienda  of  “San  Agustin  de  Amoles”  and  the  annexed  in 
the  districts  of  San  Luis  and  Tamaulipas  and  the  other  of  Ibarra 
in  the  district  of  Guanajuato.  [5'iV.]  A capital  of  forty  thousand 
dollars  imposed  in  the  hacienda  of  “Arroga  Zareo,”  and  forty-two 
thousand  dollars  in  the  hacienda  of  “Santa  Lugarda,”  and  annexed 
farm,  in  the  San  Juan  de  los  Liams.  A deed  of  one  hundred  and 
sixty-two  thousand,  six  hundred  and  eighteen  dollars,  three  reals 
and  three  grains,  invested  at  interest  at  the  rate  of  five  per  cent 
per  annum  in  the  old  Cotisulado  and  of  which  nothing  has  been 
collected  till  now,  and  in  other  sums  which  in  several  occasions 
has  [jtc.]  been  taken  for  the  public  treasury  with  the  clause  of 
devolution. 

The  three-quarter  parts  of  the  hacienda  of  the  Cienega  are 
embargoed  and  ordered  to  be  sold  pursuant  a judicial  demand 
prosecuted  by  Mr.  Jose  Ma.  Jauregui  vs.  the  Fund,  and  if 
the  sentence  is  carried  into  effect  in  the  manner  it  has  been  pro- 
nounced, the  embargoed  estate  will  not  be  sufficient  to  cover  it. 
The  fund  is  responsible  to  other  credits,  which  could  not  be  cov- 
ered on  account  of  loan  which,  with  its  mortgage,  the  supreme 


46 


THE  HAGUE  COURT  REPORTS 


Government  raised,  as  almost  all  its  income  was  applied  to  pay 
the  interest  of  said  loan,  and  which  is  paying  now  at  great  sacri- 
fice. With  the  above  stated  I believe  I answer  to  the  note  of 
your  Excellency,  which  I have  just  received,  and  I avail  of  this 
opportunity  to  assure  you  of  my  considerations  and  respects. 

God  and  Liberty,  Mexico,  February  5,  1842. 

Pedro  Ramirez,  to  His  Excellency 

the  Minister  of  Justice  and  Public  Instruction. 


will  be  seen  by  the  foregoing  information  report  the  bad  condi- 
non  in  which  was  the  fund  of  Californias  at  the  time  that  the  Mexican 
treasury  received  it^  that  a great  part  of  it  consisted  in  old  credits, 
represented  in  Mexico  by  a paper  which  had  almost  no  quotation  in 
the  market,  and  that  the  author  of  the  report  declares  that  all  the 
",  fund  was  at  the  point  of  being  absorbed  by  a judicial  sentence  pro- 
i^nounced  in  favor  of  one  of  the  creditors. 

It  is  not  strange  that  the  news  hereabove  copied  should  be  so  dis- 
couraging, as  seventeen  years  before  it  was  written,  the  Secretary  of 
the  Treasury  of  Mexico  gave  the  same  discouraging  facts  about  the 
same  matter,  in  his  report  presented  to  the  Congress  in  the  year  1825, 


VIZ. : 


CALIFORNIAS 


The  missions  of  the  same  established  with  the  purpose  of  bring- 
ing to  the  faith  the  Indians  who  did  not  possess  it,  were  in  charge 
of  the  Jesuits.  When  these  yet  subsisted,  the  Marquis  of  Villa 
Puente  de  la  Pena,  left  in  September,  1726,  under  the  protection 
of  the  Government,  six  haciendas  with  the  object  of  sustaining 
said  missions.  When  the  Jesuits  were  suppressed,  the  haciendas 
were  managed  by  the  administrator  and  auditor  of  the  temporali- 
ties ; afterwards  the  clergy  of  San  Fernando  and  Santo  Domingo, 
and,  in  1782,  one  of  the  Secretaries  of  the  Mexican  Treasury. 
They  are  now  under  the  responsibility  of  one  administrator. 

The  hacienda  called  “Zarra,”  the  one  of  “San  Augustin  de  los 
Amoles,”  the  one  of  the  “Buez,”  the  “Valla,”  a part  of  the  one 
of  “Cienega,”  and  another  in  the  houses  in  Vergara  St.  of  Mexico, 
comprise  the  total  estates,  in  the  county  and  in  the  city,  of  the 
fund  of  missions  of  Californias. 

Their  proceeds  are  very  small,  the  insurrection  of  1810  caused 
to  the  five  first  named,  such  great  damages  that  [they}  were  al- 
most ruined.  The  want  of  cattle  and  repairs  keep  them  very  low ; 
their  proceeds  may  be  in  1825,  12,150  dollars  and  5 reals. 

These  missions  have  besides  631,056  dollars,  7 reals  and  9 
grains  of  capital  imposed  in  consolidated,  national  treasury, 
consnlado,  and  others,  of  which  no  interest  are  collected. 

The  salaries  of  its  employees  amount  to  3,300  dollars,  4 reals. 


THE  PIOUS  FUND  CASE 


47 


The  sinodes,  viaticums,  and  the  other  indispensable  expenses  of 
the  missionaries,  clergymen  are  calculated  at  present  to  be  19,250 
dollars  [jic.]  ; the  deficit  will  be  a passive  credit  which  will  take 
its  place  when  it  has  to  be  paid. 

Here  is  the  place  to  insist  upon  the  point  that  not  only  the  claimants 
exaggerate  much  the  importance  of  the  fund,  to  which  interest  they 
believe  to  be  share-holders,  but  they  want  to  divide  it  as  the  lion  of  the 
fable,  when  they  only  leave  one-tenth  for  the  Church  of  the  Lower 
California. 

If  it  is  to  be  given  to  the  documents  which  constitute  the  history 
of  this  matter  the  literal  and  strict  interpretation  that  the  Bishops  of 
Upper  California  pretends  [Jtc.]  the  fund  in  question  had  as  single 
and  exclusive  object  the  sustain  [sustenance'\  of  the  missions. 

^he  greatest  number  of  them  were  since  the  beginning  founded  in 
the  Lower  California,  so  that  making  an  equitable  division  and  adopt- 
ing the  same  law,  and  the  same  history  used  by  the  claimants,  jt  will 
only  belong  to  them  the  smallest  part  of  the  interest  they  claim.  J(See 
the  number  of  the  missions  respectively  founded  in  the  two  Califor- 
nias,  detailed  in  the  statement  which  appears  in  the  page  15  of  Ex- 
hibit No.  25.) 

As  it  has  been  already  said  the  Mexican  Government  was  sustain- 
ing these  foundations  with  resources  derived  of  private  donation  as 
well  as  of  the  public  revenues.  The  confirmation  of  this  can  be  seen 
by  the  successive  budgets  of  the  federal  administration. 

Whether  after  the  peace  of  Guadalupe  the  same  thing  has  been  done 
or  not,  or  whether  it  has  been  or  not  erogations  for  the  civilization  of 
the  indigenes  in  Lower  California  or  in  the  other  Western  States  is  a 
matter  that  the  undersigned  does  not  believe  himself  under  the  neces- 
sity of  demonstrating  here,  nor  the  Mexican  Government  has  not 
thought  itself  undoubtedly  under  the  obligation  of  proving  it,  because 
those  who  now  move  question  about  the  matter  have  no  right  to  do 
it.  [S'!!:.] 

So  must  have  been  the  views  of  the  Government  of  the  United 
States,  when,  in  1859,  it  abstained  from  presenting  this  claim,  when 
it  was  stimulated  to  do  so  by  those  who  now  present  the  said  claim. 

The  Government  of  Washington  must  have  opposed  the  exigency, 
to  which  they  tried  to  push  it,  and  this  is  the  reason  why  it  did  not 
wish,  as  it  was  pretended,  to  ask  for  a dotation  in  money  for  the 
Catholic  Church  of  Upper  California,  after  depriving  Mexico  of  that 
rich  State. 


48 


THE  HAGUE  COURT  REPORTS 


Sometimes  a daughter  is  taken  by  force  or  seduction  from  the  pater- 
nal house,  and  the  act  is  repaired  by  a forced  marriage.  The  husband 
applies  afterwards  to  demand  a dower  from  the  offended  and  aban- 
doned father. 

The  Bishops  interested  in  this  matter  tried  to  induce  the  American 
Government  to  act  in  a similar  way. 

As  they  did  not  succeed,  they  now  reproduce  before  us  the  same 
pretension,  and  it  must  be  dismissed  without  hesitation. 

Such  is  the  opinion  of  the  undersigned. 


Award  of  Sir  Edward  Thornton,  umpire  in  the  original  Pious  Fund 

Case  before  the  United  States  and  Mexican  Claims  Commission  of 

1868. — Washington,  November  ii,  18^5} 

This  case  having  been  referred  to  the  umpire  for  his  decision  upon 
a difference  in  opinion  between  the  commissioners,  the  umpire  ren- 
dered the  following  decision : 

In  the  case  of  “Thaddeus  Amat,  Bishop  of  Monterey,  and  Joseph 
S.  Alemany,  Archbishop  of  San  Francisco  vs.  Mexico”  No.  493,  it 
will  be  impossible  for  the  umpire  to  discuss  the  various  arguments 
which  have  been  put  forward  on  each  side. 

He  will  be  able  only  to  state  the  conclusions  which  he  has  arrived 
at  after  a careful  and  lengthened  study  of  all  the  documents  which 
have  been  submitted  to  him. 

He  is  about  to  give  his  decision  with  a profound  sense  of  the  im- 
portance of  the  case  in  accordance  with  what  he  considers  to  be  just 
and  equitable  as  far  as  he  can  rely  upon  his  own  judgment  and 
conscience. 

The  first  question  to  be  considered  is  the  citizenship  of  the  claimants. 

On  this  point  the  umpire  is  of  opinion  that  the  Roman  Catholic 
Church  of  Upper  California  became  a corporation  of  citizens  of  the 
United  States  on  the  30th  of  May,  1848,  the  day  of  the  exchange  of 
ratifications  of  the  Treaty  of  Guadalupe  Hidalgo. 

By  the  VIII  Article  of  the  treaty  it  was  agreed  that  those  Mexi- 
cans residing  in  the  territories  ceded  by  Mexico  to  the  United  States, 
who  wished  to  retain  the  title  and  rights  of  Mexican  citizens  should 
be  under  the  obligation  to  make  their  election  within  one  year  from 
the  date  of  the  exchange  of  the  ratifications  of  the  treaty;  and  that 
those  who  should  remain  in  the  said  territories  after  the  expiration  of 
that  year,  without  having  declared  their  intention  to  retain  the  char- 

'^Unitcd  States  avd  Mexican  Claims  Commission,  Opinions  (MS.  Dep’t  of 
State),  vol.  vii,  p.  459. 


THE  PIOUS  FUND  CASE 


49 


acter  of  Mexicans,  should  be  considered  to  have  elected  to  have  be- 
come citizens  of  the  United  States.  It  has  not  been  shown  that  the 
Roman  Catholic  Church  in  Upper  California  had  declared  any  inten- 
tion of  retaining  its  Mexican  citizenship  and  it  can  not  but  be  con- 
cluded that  it  had  elected  to  assume  the  citizenship  of  the  United 
States  as  soon  as  it  was  possible  for  it  to  do  so,  which  in  the  opinion 
of  the  umpire  was  when  Upper  California  was  actually  incorporated 
into  the  United  States  on  the  exchange  of  the  ratifications  of  the 
Treaty  of  Guadalupe  Hidalgo. 

With  regard  to  any  claim  which  may  have  originated  before  that 
date  the  claimants  could  not  have  been  entitled  to  appear  before  the 
mixed  commission  established  by  the  Convention  of  July  4,  1868; 
but  a claim  arising  after  that  date  would  come  under  the  cognizance 
of  the  commission.  _ 

The  claim  now  put  forward  is  for  interest  upon  the  so-called  “Pious 
Fund  of  the  Californias.”  If  this  interest  should  have  been  paid  to 
the  Right  Reverend  Francisco  Garcia  Diego,  the  Bishop  of  California, 
before  the  separation  of  Upper  California  from  the  Republic  of 
Mexico,  it  seems  to  the  umpire  that  a fair  proportion  of  it  ought  now 
and  since  the  30th  of  May,  1848,  to  be  paid  to  the  claimants,  who  in 
his  opinion  are  the  direct  successors  of  that  Bishop,  as  far  as  Upper 
California  is  concerned. 

The  “Pious  Fund  of  the  Californias”  was  the  results  of  donations 
made  by  various  private  persons  for  the  purpose  of  establishing,  sup- 
porting and  maintaining  Roman  Catholic  missions  in  California,  and 
for  converting  to  the  Roman  Catholic  faith  the  heathens  of  that  re- 
gion. The  disbursements  of  the  proceeds  of  these  donations  was  en- 
trusted by  the  donors  to  the  Society  of  Jesus.  The  object  of  the 
donors  was  without  doubt  principally  the  advancement  of  the  Roman 
Catholic  religion.  The  donations  were  made  by  private  persons  for 
particular  and  expressed  objects  and  had  nothing  public,  political  or 
national  in  their  character.  Once  permission  was  granted  to  the 
Jesuit  fathers  Salvatierra  and  Kuhu  to  establish  missions  in  Cali- 
fornia, to  take  charge  of  the  conversion  to  Christianity  of  the  heathens, 
and  to  solicit  alms  for  that  purpose,  it  does  not  seem  that  the  Spanish 
Government  assisted  them  with  any  considerable  sums,  if  any  at  all, 
and  certainly  with  not  so  much  as  almost  any  Government  would 
have  considered  itself  bound  to  furnish  for  the  benefit  of  a region 
over  which  it  claimed  dominion. 

It  can  be  easily  understood  that  the  Spanish  Government  was  verv 


50 


THE  HAGUE  COURT  REPORTS 


glad  to  avail  itself  of  the  religious  feelings  of  its  subjects,  and  saw 
with  great  satisfaction  that  their  donations  would  powerfully  con- 
tribute to  the  political  conquest  of  the  Californias;  but  the  object  of 
the  donors  was  the  religious  conquest  alone,  though  they  too  might 
have  felt  some  pride  in  the  consciousness  that  they  were  at  the  same 
time  contributing  to  the  extension  of  the  possessions  of  Spain. 

The  alms,  however,  solicited  in  the  first  instance  by  the  Jesuit 
fathers,  and  the  donations  subsequently  made  by  piously  disposed 
persons  were  neither  political  nor  national;  they  were  directed  to  the 
religious  conquest  of  the  Californias,  and  were  the  gifts  of  private 
persons  for  that  particular  object. 

On  the  expulsion  of  the  Jesuits  from  the  Spanish  Dominions,  and 
the  abolition  of  the  Order,  occurrences  which  the  donors  to  the  Pious 
Fund  could  not  have  foreseen,  the  Spanish  Government  naturally  be- 
came the  trustee  and  caretaker  of  that  fund,  but  it  took  charge  of  it 
avowedly  with  all  the  duties  and  obligations  attached  to  it.  The  mis- 
sions were  confided  to  the  Franciscan  Order,  and  subsequently  they 
were  divided  between  this  Order  and  the  Dominicans,  but  although  the 
Pious  Fund  was  administered  by  the  Spanish  Government,  its  pro- 
ceeds were  applied  to  the  maintenance  of  the  missions  belonging  to 
both  Orders. 

When  Mexico  became  independent  she  succeeded  to  the  trust  which 
had  been  held  by  the  Spanish  Government,  and  continued  to  apply  the 
proceeds  of  the  fund  to  the  maintenance  of  the  missions.  In  1836 
it  was  considered  desirable  to  establish  a Bishopric  which  was  to  com- 
'prise  the  two  Californias. 

An  Act  of  Congress  was  passed  for  this  purpose,  and  the  same  act 
entrusted  to  the  Bishop,  who  was  to  be  appointed,  the  administration 
and  application  of  the  Pious  Fund  in  accordance  with  the  wishes  of 
its  founders. 

On  the  8th  of  February,  1842,  President  Santa  Anna  repealed  the 
latter  part  of  the  Act  of  1836  and  assigned  the  administration  and  ap- 
plication of  the  fund  to  the  Mexican  Government,  but  the  decree 
which  he  signed  for  this  purpose  also  declared  that  the  object  of  the 
donor  was  to  be  carried  out  by  the  civilization  and  conversion  of  the 
savages.  On  the  24th  of  October  of  the  same  year  another  decree 
was  issued  by  the  above-mentioned  President  to  the  effect  that  the 
real  estate  and  other  property  of  the  Pious  Fund  were  to  be  incor- 
porated into  the  national  treasury  and  were  to  be  sold  at  a certain 
price,  the  treasury  recognizing  the  total  proceeds  of  these  sales  at  an 


THE  PIOUS  FUND  CASE 


51 


interest  of  six  per  cent  and  the  preamble  of  this  decree  declaring  that  i 
the  assumption  by  the  Government  of  the  care  and  the  administration 
of  the  Pious  Fund  was  for  the  express  purpose  of  scrupulously  carry- 
ing out  the  objects  proposed  by  the  founders. 

(^Neither  by  the  Spanish  nor  by  the  Mexican  Government  was  it  ever  \ 
pretended  that  the  proceeds  of  the  fund  were  not  finally  to  find  their  \ 
way  into  the  hands  of  the  ecclesiastical  authorities  in  the  Californias,  \ 
or  that  they  were  to  be  applied  to  any  other  objects  than  those  pointed  j 

out  by  the  donors.  Subsequently  to  the  decree  of  October  24,  1842,  ' 

the  Mexican  Government  admitted  its  indebtedness  and  the  obligation 
it  was  under  to  remit  the  proceeds  of  the  fund  to  the  Bishop  of 
California  by  issuing  orders  in  his  favor  on  the  custom  house  at 
Guaymas."^ 

This  obligation  is  still  further  acknowledged  by  the  Act  of  Con- 
gress of  April  3,  1845,  which  restored  to  the  Bishop  of  the  Californias 
and  to  his  successors  all  credits  and  other  properties  belonging  to  the 
Pious  Fund  which  were  still  unsold,  for  the  objects  mentioned  in  the 
law  of  September  29,  1836,  without  prejudice  to  what  Congress  might  ; 
decide  with  regard  to  those  properties  which  had  already  beep-^ 
alienated. 

The  above-mentioned  credits  must  surely  have  included  the  indebt- 
edness of  the  Government  with  regard  to  the  unpaid  interest  upon  the 
property  sold,  the  proceeds  of  which  had  been  incorporated  into  the 
national  treasury.  The  umpire  does  not  find  that  any  further  legis- 
lation has  been  effected  upon  the  subject  since  the  Decree  of  April  3, 
1845. 

Such  then  was  the  state  of  the  Mexican  laws  with  regard  to  the 
Pious  Fund  at  the  time  of  the  cession  of  Upper  California  to  the 
United  States,  and  the  umpire  is  clearly  of  opinion  that  both  the 
acts  of  the  Mexican  Government  and  its  decrees  above  mentioned  aa 
well  as  the  Act  of  Congress  of  1845  are  so  many  admissions  that  the  \ 
Mexican  Government  was  under  the  obligation  to  remit  to  the  Bishop 
of  California  and  his  successors  the  interest  on  the  proceeds  of  the 
property  belonging  to  the  Pious  Fund  which  were  held  in  trust  by  the 
Mexican  Treasury,  in  order  that  the  Bishop  and  his  successors  might 
carry  out  the  wishes  of  the  founders  of  that  fund. 

The  umpire  has  already  stated  that  he  considers  that  as  far  as 
Upper  California  is  concerned,  the  claimants  are  the  direct  successors 
of  the  Bishop  of  California,  whose  Diocese  before  the  Treaty  of 
Guadalupe  Hidalgo,  comprised  both  Upper  and  Lower  California  ; 
and  they  ought  therefore  to  receive  a fair  share  of  the  interest  upon 


52 


THE  HAGUE  COURT  REPORTS 


the  proceeds  of  the  Pious  Fund,  in  order  to  devote  it  to  the  purposes 
for  which  it  was  founded,  and  which  are  of  so  decidedly  a religious 
nature,  that  the  ecclesiastical  authorities  must  be  the  most  proper 
persons  to  be  employed  in  its  application. 

The  beneficiaries  of  this  share  of  the  fund  are  the  Roman  Catholic 
Church  in  Upper  California,  and  the  heathens  who  are  to  be  converted 
to  Christianity;  and  indirectly  all  the  inhabitants  of  the  State  of 
California,  and  even  the  whole  population  of  the  United  States,  are 
interested  in  the  proper  application  of  the  portion  which  should  be 
entrusted  to  the  claimants,  upon  whom,  considering  the  purposes  to 
which  the  founders  assigned  their  donations,  the  employment  of  the 
fund  would  most  suitably  devolve. 

With  regard  to  the  proportion  of  the  interest  which  should  be  paid 
to  the  claimants,  the  umpire  is  of  opinion  that  nothing  can  be  fairer 
/ than  that  the  whole  of  the  interest  for  twenty-one  years  should  be 
divided  into  two  equal  parts,  of  which  one  should  be  paid  to  the 
claimants. 

It  has  been  argued  that  the  award  should  be  made  in  proportion  to 
the  populations  respectively  of  Upper  and  Lower  California. 

The  umpire  is  not  of  that  opinion ; for  it  seems  to  him  that  as  the 
population  and  civilization  increase,  the  number  of  conversions  to  be 
made  diminish  and  there  can  be  little  doubt  that  Lower  California 
needs  the  beneficial  assistance  of  the  Pious  Fund  as  much  and  even 
more  in  proportion  to  its  population  than  Upper  California  now  does. 
The  equal  division  of  the  interest  seems  to  be  the  fairest  award. 

After  a careful  examination  of  the  data  furnished  with  regard  to 
the  yearly  amount  of  the  interest,  the  umpire  is  constrained  to  adopt 
the  views  of  the  commissioner  of  the  United  States.  A larger  sum 
is  claimed  on  the  part  of  the  claimants ; but  even  with  regard  to  this 
larger  sum  the  defense  has  not  shown,  except  indirectly,  that  its 
amount  was  exaggerated. 

There  is  no  doubt  that  the  Mexican  Government  must  have  in  its 
possession  all  the  accounts  and  documents  relative  to  the  sale  of  the 
real  property  belonging  to  the  Pious  Fund  and  the  proceeds  thereof  ; 
yet  these  have  not  been  produced;  and  the  only  inference  that  can 
be  drawn  from  silence  upon  this  subject  is  that  the  amount  of  the 
proceeds  actually  received  into  the  treasury  was  at  least  not  less  than 
it  is  claimed  to  be. 

The  annual  amount  of  interest  therefore  which  should  fall  to  the 
share  of  the  Roman  Catholic  Church  of  Upper  California  is  $43,080.99 
V^nd  the  aggregate  sum  for  twenty-one  years  will  be  $904,700.79. 


THE  PIOUS  FUND  CASE 


53 


It  has  been  urged  that  interest  should  be  paid  upon  each  annual^ 
amount  from  the  respective  date  at  which  it  became  due.  The  umpire 
is  not  of  this  opinion.  It  is  true  that  the  Archbishop  of  San  Fran- 
cisco states  in  his  deposition  that  when  in  the  City  of  Mexico  in  1852, 
he  demanded  payment  of  the  amounts,  or  property  of  the  Pious  Fund, 
and  that  receiving  no  answer  to  his  demands  he  reiterated  the  same, 
and  only  after  a long  time  was  officially  informed  that  the  Government 
could  not  accede  to  them. 

From  a man  of  the  position  and  character  of  the  Archbishop  there 
can  be  no  doubt  of  the  truth  of  this  statement;  but  yet  there  is  no 
documentary  evidence  of  these  facts,  and  the  umpire  therefore  sup- 
poses that  the  demand  and  the  refusal  were  both  verbal.  Upon  a mat- 
ter of  such  serious  importance  the  umpire  does  not  think  that  a verba! 
refusal  by  a Government  to  make  a certain  payment  can  be  taken  as 
its  final  determination  upon  the  subject.  The  refusal  may  even  have 
been  qualified  by  the  inability  of  the  Government  to  provide  the  neces- 
sary funds  at  the  time  of  the  demand.  Of  this  in  the  absence  of  any 
writing  upon  the  subject,  no  judgment  can  be  found.  The  umpire 
further  thinks  that  considering  the  troubles  and  difficulties  to  which 
Mexico  and  her  Government  have  been  subject  for  several  years  past 
it  would  not  be  generous  nor  even  fair  to  punish  them  for  their  fail- 
ure to  pay  interest  upon  a capital  of  the  nature  of  the  Pious  Fund, 
so  far  as  to  insist  upon  the  payment  of  interest  upon  that  interest. 
As  a matter  therefore  both  of  justice  and  equity  the  umpire  think^ 
that  this  second  interest  ought  not  to  be  demanded. 

The  umpire  consequently  awards  that  there  be  paid  by  the  Mexican^ 
Government  on  account  of  the  above-mentioned  claim  the  sum  of  nine 
hundred  and  four  thousand,  seven  hundred  Mexican  gold  dollars  and 
seventy-nine  cents  ($904,700.79)  without  interest. 

Washington,  November  11,  1875. 


Decision  of  Sir  Edward  Thornton,  amending  the  award  of  the  original 
Pious  Fund  Case  before  the  United  States  and  Mexican  Claims 
Commission  of  i868. — Washington,  October  24,  i8y6} 

Upon  consideration  of  the  agent  of  Mexico  to  amend  the  award 
made  herein,  the  umpire  rendered  the  following  decision : 

With  reference  to  the  case  of  “Thaddeus  Amat  et  al.  vs.  Mexico” 

Wnited  States  and  Mexican  Claims  Commission,  Opinions  (MS.  Dep’t  of 
State),  vol  vi,  p.  544. 


54 


THE  HAGUE  COURT  REPORTS 


No.  493,  the  agent  is  quite  right  in  stating  that  there  is  an  error  of 
$1,000  in  the  addition  of  the  sums  which  are  considered  as  bad  debts, 
and  which  should  be  deducted  from  the  total  of  the  “Pious  Fund.*’ 

Instead  of  being  $46,617,  these  bad  debts  are  $47,617.  The  total  of 
the  fund  will  therefore  be  $1,435,033.  The  half  of  the  interest  upon 
this  sum  at  six  per  cent  will  be  $43,050.99  the  amount  of  which  for 
twenty-one  years  will  be  $904,070.79. 

The  umpire  therefore  finally  awards  that  there  be  paid  by  the 
Mexican  Government  on  account  of  the  above-mentioned  claim  the 
sum  of  nine  hundred  and  four  thousand  and  seventy  Mexican  gold 
dollars  and  seventy-nine  cents  ($904,070.79)  without  interest. 

\ Washington,  October  24,  1876. 

X 


THE  VENEZUELAN  PREFERENTIAL  CASE 

between 

GERMANY,  GREAT  BRITAIN,  ITALY  and  VENEZUELA 

ET  AL 

Decided  February  22,  1904 
Syllabus 

The  arbitration  had  its  origin  in  a controversy  which  arose  over 
certain  pecuniary  claims  of  the  subjects  of  Great  Britain,  Germany 
and  Italy  against  the  Republic  of  Venezuela.  A solution  not  having 
been  reached  by  the  diplomatic  negotiations,  the  controversy  culminated 
on  December  11,  1902,  in  the  ordering  by  Great  Britain  of  a blockade 
of  the  ports  of  Venezuela.  Two  days  afterward  Venezuela  offered  to 
submit  the  controversy  to  arbitration.  This  offer  was  ignored  and 
seven  days  later  the  blockade  of  the  Venezuelan  ports  was  declared  by 
the  British,  German  and  Italian  Governments. 

At  the  same  time  the  United  States,  Mexico,  Spain,  France,  Bel- 
gium, the  Netherlands,  and  Sweden  and  Norway  also  held  claims 
against  Venezuela,  which  had  been  the  subject  of  diplomatic  negotia- 
tions, but  no  forcible  measures  had  been  employed  by  these  Govern- 
ments to  secure  the  adjustment  of  their  claims. 

After  the  blockade  had  been  put  into  effect,  Venezuela  sent  a repre- 
sentative to  Washington  with  full  powers  to  negotiate  with  the  repre- 
sentatives of  the  creditor  Powders  a settlement  of  all  the  matters  in 
controversy.  The  negotiations  took  place  during  the  winter  and  spring 
of  1903.  In  the  course  of  the  negotiations  the  Venezuelan  representa- 
tive proposed  that  the  claims  of  all  the  countries  above-mentioned 
against  Venezuela  be  paid  out  of  the  customs  receipts  of  the  ports  of 
La  Guaira  and  Puerto  Cabello,  thirty  per  cent  of  the  receipts  of  which 
would  be  set  aside  each  month  for  that  purpose.  The  proposal  was 
accepted  by  the  claimant  nations  and  an  assignment  of  the  revenues 
mentioned  was  made  in  theiivfavor;  but  Great  Britain,  Germany  and 
Italy,  the  blockading  Powers,'took  the  position  that  their  claims  should 
not  rank  with  the  claims  of  the  other  Powers  for  compensation,  but 
should  be  given  priority  of  payment.  Venezuela  declined  to  accept  this 
view  and  the  question  was  submitted  by  agreements  signed  May  7, 
1903,^  for  determination  by  the  Hague  tribunal.  The  other  creditor 
Powers  were  joined  as  parties  to  the  arbitration.^ 

^Post,  p.  62. 

2The  respective  claims  of  all  the  creditor  Powers  were  submitted  to  mixed 
commissions  consisting  of  one  national  each  of  Venezuela  and  the  claimant 
nation,  with  a neutral  as  umpire,  which  met  at  Caracas  and  subsequently  re- 
ported their  awards. 


56 


THE  HAGUE  COURT  REPORTS 


Pursuant  to  the  provisions  of  the  protocols,  the  Czar  of  Russia 
named  three  members  of  the  panel  of  the  Permanent  Court  of  Arbi- 
tration as  arbitrators,  no  one  of  whom  was  a citizen  or  subject  of  any 
of  the  signatory  or  creditor  Powers,  as  follows:  Nicolas  V.  Mourawieff 
and  Fr.  Martens  of  Russia,  and  Heinrich  Lammasch  of  Austria-Hun- 
gary. The  sessions  of  the  tribunal  began  October  1,  1903,  and  ended 
November  13,  1903.  The  decision,  which  was  rendered  on  February 
22,  1904,  held  that : 

1.  Germany,  Great  Britain  and  Italy  have  a right  to  preferential 
treatment  for  the  payment  of  their  claims  against  Venezuela ; 

2.  Venezuela  having  consented  to  put  aside  thirty  per  cent  of  the 
revenues  of  the  customs  of  La  Guaira  and  Puerto  Cabello  for  the  pay- 
ment of  the  claims  of  all  nations  against  Venezuela,  the  three  above- 
named  Powers  have  a right  to  preference  in  the  payment  of  their 
claims  by  means  of  these  thirty  per  cent  of  the  receipts  of  the  two 
Venezuelan  ports  above  mentioned  ; 

3.  Each  party  to  the  litigation  shall  bear  its  own  costs  and  an  equal 
share  of  the  costs  of  the  tribunal.^ 


AWARD  OF  THE  TRIBUNAL 

Award  of  the  tribunal  of  arbitration  constituted  in  virtue  of  the 

protocols  signed  at  Washington  on  May  7,  ipoj,  between  Great 

Britain,  Germany  and  Italy,  on  the  one  hand,  and  Venezuela  on 

the  other. — The  Hague,  February  22, 

The  tribunal  of  arbitration,  constituted  in  virtue  of  the  protocols 
sigTied  at  Washington  on  May  7,  1903,*  between  Germany,  Great 
Britain  and  Italy  on  the  one  hand  and  Venezuela  on  the  other  hand ; 

Whereas  other  protocols  were  signed  to  the  same  effect  by  Bel- 
gium, France,  Mexico,  the  Netherlands,  Spain,  Sweden  and  Nor- 
way and  the  United  States  of  America  on  the  one  hand  and  Vene- 
zuela on  the  other  hand^ ; 

Whereas  all  these  protocols  declare  the  agreement  of  all  the  con- 
tracting parties  with  reference  to  the  settlement  of  the  claims  against 
the  Venezuelan  Government; 

Whereas  certain  further  questions,  arising  out  of  the  action  of 
the  Governments  of  Germany,  Great  Britain  and  Italy  concerning 
the  settlement  of  their  claims,  were  not  susceptible  of  solution  by 
the  ordinary  diplomatic  methods; 

^Post,  p.  61. 

^Official  report,  p.  123.  For  the  French  text,  see  Appendix,  p.  441. 

*Post,  p.  62.  *Post,  p.  74. 


THE  VENEZUELAN  PREFERENTIAL  CASE 


57 


Whereas  the  Powers  interested  decided  to  solve  these  questions 
by  submitting  them  to  arbitration,  in  conformity  with  the  disposi- 
tions of  the  Convention,  signed  at  The  Hague  on  July  29th,  1899, 
for  the  pacific  settlement  of  international  disputes ; 

Whereas  in  virtue  of  Article  3 of  the  protocols  of  Washington  of 
May  7th,  1903,  His  Majesty  the  Emperor  of  Russia  was  requested 
by  all  the  interested  Powers  to  name  and  appoint  from  among  the 
members  of  the  Permanent  Court  of  Arbitration  of  The  Hague 
three  arbitrators  who  shall  form  the  tribimal  of  arbitration  charged 
with  the  solution  and  settlement  of  the  questions  which  shall  be 
submitted  to  it  in  virtue  of  the  above-named  protocols; 

Whereas  none  of  the  arbitrators  thus  named  could  be  a citizen 
or  subject  of  any  one  of  the  signatory  or  creditor  Powers  and 
whereas  the  tribunal  was  to  meet  at  The  Hague  on  September  1st, 
1903,  and  render  its  award  within  a term  of  six  months ; 

His  Majesty  the  Emperor  of  Russia,  conforming  to  the  request 
of  all  the  signatory  Powers  of  the  above-named  protocols  of  Wash- 
ington of  May  7th,  1903,  graciously  named  as  arbitrators  the  fol- 
lowing members  of  the  Permanent  Court  of  Arbitration : 

His  Excellency  Mr.  N.  V.  Mourawieff,  Secretary  of  State  of  His 
Majesty  the  Emperor  of  Russia,  Actual  Privy  Councilor,  Minister 
of  Justice  and  Procurator  of  the  Russian  Empire, 

Mr.  H.  Lammasch,  Professor  of  Criminal  and  of  International 
Law  at  the  University  of  Vienna,  member  of  the  Upper  House  of 
the  Austrian  Parliament,  and 

His  Excellency  Mr.  F.  de  Martens,  Doctor  of  Law,  Privy  Coun- 
cilor, permanent  member  of  the  Council  of  the  Russian  Ministry  of 
Foreign  Affairs,  member  of  the  Institut  de  France; 

Whereas  Iv  unforeseen  circumstances  the  tribunal  of  arbitration 
could  not  be  definitely  constituted  till  October  1st,  1903,  the  arbi- 
trators, at  their  first  meeting  on  that  day  proceeding  in  conformity 
with  Article  34  of  the  Convention  of  July  29th,  1899,  to  the  nom- 
ination of  the  president  of  the  tribunal,  elected  as  such  his  Excel- 
lency Mr.  Mourawieff,  Minister  of  Justice; 

And  whereas  in  virtue  of  the  protocols  of  Washington  of  May 
7th,  1903,  the  above-named  arbitrators,  forming  the  legally  consti- 
tuted tribunal  of  arbitration,  had  to  decide,  in  conformity  with 
Article  1 of  the  protocols  of  Washington  of  May  7th,  1903,  the  fol- 
lowing points : 


58 


THE  HAGUE  COURT  REPORTS 


The  question  as  to  whether  or  not  Germany,  Great  Britain,  and 
Italy  are  entitled  to  preferential  or  separate  treatment  in  the  pay- 
ment of  their  claims  against  Venezuela,  and  its  decision  shall  be 
final. 

Venezuela  having  agreed  to  set  aside  thirty  per  cent  of  the  cus- 
toms revenues  of  La  Guaira  and  Puerto  Cabello  for  the  payment 
of  the  claims  of  all  nations  against  Venezuela,  the  tribunal  at  The 
Hague  shall  decide  how  the  said  revenues  shall  be  divided  between 
the  blockading  Powers  on  the  one  hand  and  the  other  creditor 
Powers  on  the  other  hand,  and  its  decision  shall  be  final. 

If  preferential  or  separate  treatment  is  not  given  to  the  block- 
ading Powers,  the  tribunal  shall  decide  how  the  said  revenue  shall 
be  distributed  among  all  the  creditor  Powers,  and  the  parties  hereto 
agree  that  the  tribunal,  in  that  case,  shall  consider,  in  connection 
with  the  payment  of  the  claims  out  of  the  thirty  per  cent,  any 
preference  or  pledges  of  revenues  enjoyed  by  any  of  the  creditor 
Powers,  and  shall  accordingly  decide  the  question  of  distribution 
so  that  no  Power  shall  obtain  preferential  treatment,  and  its  decision 
shall  be  final. ^ 

Whereas  the  above-named  arbitrators,  having  examined  with  im- 
partiality and  care  all  the  documents  and  acts  presented  to  the 
tribunal  of  arbitration  by  the  agents  of  the  Powers  interested  in 
this  litigation,  and  having  listened  with  the  greatest  attention  to 
the  oral  pleadings  delivered  before  the  tribunal  by  the  agents  and 
counsel  of  the  parties  to  the  litigation ; 

Whereas  the  tribunal,  in  its  examination  of  the  present  litigation, 
had  to  be  guided  by  the  principles  of  international  law  and  the 
maxims  of  justice; 

Whereas  the  various  protocols  signed  at  Washington  since  Fel>- 
ruary  13th,  1903,  and  particularly  the  protocols  of  May  7th,  1903, 
the  obligatory  force  of  which  is  beyond  all  doubt,  form  the  legal 
basis  for  the  arbitral  award; 

Whereas  the  tribunal  has  no  competence  at  all  either  to  contest 
the  jurisdiction  of  the  mixed  commissions  of  arbitration  established 
at  Caracas,  nor  to  judge  their  action; 

Whereas  the  tribunal  considers  itself  absolutely  incompetent  to 
give  a decision  as  to  the  character  or  the  nature  of  the  military  oper- 
ations undertaken  by  Germany,  Great  Britain  and  Italy  against 
Venezuela ; 


p.  62. 


THE  VENEZUELAN  PREFERENTIAL  CASE 


59 


Whereas  also  the  tribunal  of  arbitration  was  not  called  upon  to 
decide  whether  the  three  blockading  Powers  had  exhausted  all 
pacific  methods  in  their  dispute  with  Venezuela  in  order  to  prevent 
the  employment  of  force; 

And  it  can  only  state  the  fact  that  since  1901  the  Government  of 
Venezuela  categorically  refused  to  submit  its  dispute  with  Germany 
and  Great  Britain  to  arbitration  which  was  proposed  several  times 
and  especially  by  the  note  of  the  German  Government  of  July  16th, 
1901; 

Whereas  after  the  war  between  Germany,  Great  Britain  and  Italy 
on  the  one  hand  and  Venezuela  on  the  other  hand  no  formal  treaty 
of  peace  was  concluded  between  the  belligerent  Powers ; 

Whereas  the  protocols,  signed  at  Washington  on  February  13th, 
1903^  had  not  settled  all  the  questions  in  dispute  between  the  belig- 
erent  parties,  leaving  open  in  particular  the  question  of  the  distribu- 
tion of  the  receipts  of  the  customs  of  La  Guaira  and  Puerto  Cabello ; 

Whereas  the  belligerent  Powers  in  submitting  the  question  of 
preferential  treatment  in  the  matter  of  these  receipts  to  the  judg- 
ment of  the  tribunal  of  arbitration,  agreed  that  the  arbitral  award 
should  serve  to  fill  up  this  void  and  to  ensure  the  definite  reestab- 
lishment of  peace  between  them; 

Whereas  on  the  other  hand  the  warlike  operations  of  the  three 
great  European  Powers  against  Venezuela  ceased  before  they  had 
received  satisfaction  on  all  their  claims,  and  on  the  other  hand  the 
question  of  preferential  treatment  was  submitted  to  arbitration,  the 
tribunal  must  recognize  in  these  facts  precious  evidence  in  favor  of 
the  great  principle  of  arbitration  in  all  phases  of  international  dis- 
putes ; 

Whereas  the  blockading  Powers,  in  admitting  the  adhesion  to 
the  stipulations  of  the  protocols  of  February  13th,  1903,  of  the  other 
Powers  which  had  claims  against  Venezuela,  could  evidently  not 
have  the  intention  of  renouncing  either  their  acquired  rights  or  their 
actual  privileged  position ; 

Whereas  the  Government  of  Venezuela  in  the  protocols  of  Feb- 
ruary 13th,  1903  (Article  1),  jtself  recognizes  “in  principle  the  jus- 
tice of  the  claim/’  presented  to  it  by  the  Governments  of  Germany, 
Great  Britain  and  Italy; 


'^Post,  pp.  65,  67,  70. 


60 


THE  HAGUE  COURT  REPORTS 


While  in  the  protocol  signed  between  Venezuela  and  the  so-called 
neutral  or  pacific  Powers  the  justice  of  the  claims  of  these  latter 
was  not  recognized  in  principle; 

Whereas  the  Government  of  Venezuela  until  the  end  of  January 
1903  in  no  way  protested  against  the  pretension  of  the  blockading 
Powers  to  insist  on  special  securities  for  the  settlement  of  their 
claims ; 

Whereas  Venezuela  itself  during  the  diplomatic  negotiations 
always  made  a formal  distinction  between  “the  allied  Powers”  and 
“the  neutral  Powers'"; 

Whereas  the  neutral  Powers,  who  now  claim  before  the  tribunal 
of  arbitration  equality  in  the  distribution  of  the  thirty  per  cent  of 
the  customs  receipts  of  La  Guaira  and  Puerto  Cabello,  did  not  pro- 
test against  the  pretensions  of  the  blockading  Powers  to  a prefer- 
ential treatment  either  at  the  moment  of  the  cessation  of  the  war 
against  Venezuela  or  immediately  after  the  signature  of  the  pro- 
tocols of  February  13th,  1903; 

Whereas  it  appears  from  the  negotiations  which  resulted  in  the 
signature  of  the  protocols  of  February  13th  and  May  7th,  1903, 
that  the  German  and  British  Governments  constantly  insisted  on 
their  being  given  guaranties  for  “a  sufficient  and  punctual  discharge 
of  the  obligations”  (British  memorandum  of  December  23d,  1902, 
communicated  to  the  Government  of  the  United  States  of  Amer- 
ica") ; 

Whereas  the  plenipotentiary  of  the  Government  of  Venezuela 
accepted  this  reservation  on  the  part  of  the  allied  Powers  without 
the  least  protest; 

Whereas  the  Government  of  Venezuela  engaged,  with  respect  to 
the  allied  Powers  alone,  to  offer  special  guaranties  for  the  accom- 
plishment of  its  engagements; 

Whereas  the  good  faith  which  ought  to  govern  international  rela- 
tions imposes  the  duty  of  stating  that  the  words  “all  claims”  used 
by  the  representative  of  the  Government  of  Venezuela  in  his  con- 
ferences with  the  representatives  of  the  allied  Powers  (statement 
left  in  the  hands  of  Sir  Michael  Herbert  by  Mr.  H.  Bowen  of 


iNot  printed. 


THE  VENEZUELAN  PREFERENTIAL  CASE 


61 


January  23rd,  1903^)  could  only  mean  the  claims  of  these  latter  and 
could  only  refer  to  them; 

Whereas  the  neutral  Powers,  having  taken  no  part  in  the  warlike 
operations  against  Venezuela,  could  in  some  respects  profit  by  the 
circumstances  created  by  those  operations,  but  without  acquiring 
any  new  rights  ; 

Whereas  the  rights  acquired  by  the  neutral  or  pacific  Powers  with 
regard  to  Venezuela  remain  in  the  future  absolutely  intact  and  guar- 
anteed by  respective  international  arrangements; 

Whereas  in  virtue  of  Article  5 of  the  protocols  of  May  7th,  1903, 
signed  at  Washington,  the  tribunal  “shall  also  decide,  subject  to 
the  general  provisions  laid  down  in  Article  57  of  the  international 
Convention  of  July  29th,  1899,  how,  when  and  by  whom  the  costs 
of  this  arbitration  shall  be  paid” ; 

For  these  reasons,  the  tribunal  of  arbitration  decides  and  pro- 
nounces unanimously  that : 

1.  Germany,  Great  Britain  and  Italy  have  a right  to  preferential 
treatment  for  the  payment  of  their  claims  against  Venezuela; 

2.  Venezuela  having  consented  to  put  aside  thirty  per  cent  of  the 
revenues  of  the  customs  of  La  Guaira  and  Puerto  Cabello  for  the 
payment  of  the  claims  of  all  nations  against  Venezuela,  the  three 
above-named  Powers  have  a right  to  preference  in  the  payment  of 
their  claims  by  means  of  these  thirty  per  cent  of  the  receipts  of  the 
two  Venezuelan  ports  above  mentioned. 

3.  Each  party  to  the  litigation  shall  bear  its  own  costs  and  an 
equal  share  of  the  costs  of  the  tribunal. 

The  Government  of  the  United  States  of  America  is  charged  with 
seeing  to  the  execution  of  this  latter  clause  within  a term  of  three 
months. 

Done  at  The  Hague,  in  the  Permanent  Court  of  Arbitration, 
February  22nd,  1904. 


(Signed)  N.  Mourawieff 
(Signed)  H.  Lammasch 
( Signed ) Martens 


^Mr.  Bowen's  Statement:  Mr.  Bowen  proposes  that  all  claims  against  Vene- 
zuela shall  be  paid  out  of  the  customs  receipts  of  the  two  ports  of  La  Guaira 
and  Puerto  Cabello,  the  percentage  to  be  30  per  cent  each  month  of  the  receipts. 
In  case  of  failure  on  the  part  of  Venezuela  to  pay  the  said  30  per  cent,  the 
creditor  nations  will  be  authorized  to  put,  with  the  consent  and  without  any 
opposition  on  the  part  of  Venezuela,  Belgian  custom  officials  in  charge  of  the 
said  two  custom  houses,  and  to  administer  them  until  the  entire  foreign  debt  is 
paid.  Official  report,  p.  159. 


62 


THE  HAGUE  COURT  REPORTS 


AGREEMENT  FOR  ARBITRATION 

Protocol  of  Agreement  between  Germany  and  Venezuela  respecting 

the  reference  of  the  question  of  the  preferential  treatment  of  claims 

to  the  tribunal  at  The  Hagtie. — Signed  at  Washington,  May  y,  igo^} 

Whereas  protocols  have  been  signed  between  Germany,  Great 
Britain,  Italy,  the  United  States  of  America,  France,  Spain,  Belgium, 
the  Netherlands,  Sweden  and  Norway,  and  Mexico  on  the  one  hand, 
and  Venezuela  on  the  other  hand,  containing  certain  conditions  agreed 
upon  for  the  settlement  of  claims  against  the  Venezuelan  Government® ; 

And  whereas  certain  further  questions  arising  out  of  the  action  taken 
by  the  Governments  of  Germany,  Great  Britain  and  Italy,  in  connec- 
tion with  the  settlement  of  their  claims,  have  not  proved  to  be  sus- 
ceptible of  settlement  by  ordinary  diplomatic  methods ; 

And  whereas  the  Powers  interested  are  resolved  to  determine  these 
questions  by  reference  to  arbitration  in  accordance  with  the  provisions 
of  the  Convention  for  the  pacific  settlement  of  international  disputes, 
signed  at  The  Hague  on  the  29th  July,  1899 ; 

Venezuela  and  Germany  have,  with  a view  to  carry  out  that  resolu- 
tion, authorized  their  representatives,  that  is  to  say : 

Mr.  Herbert  W.  Bowen  as  plenipotentiary  of  the  Government  of 
Venezuela,  and 

The  Imperial  German  Minister,  Baron  Speck  von  Sternburg,  as  rep- 
resentative of  the  Imperial  German  Government  to  conclude  the  fol- 
lowing agreement : 

Article  1 

The  question  as  to  whether  or  not  Germany,  Great  Britain,  and  Italy 
are  entitled  to  preferential  or  separate  treatment  in  the  payment  of  their 
claims  against  Venezuela  shall  be  submitted  for  final  decision  to  the 
tribunal  at  The  Hague. 

Venezuela  having  agreed  to  set  aside  thirty  per  cent  of  the  customs 
revenues  of  La  Guaira  and  Puerto  Cabello  for  the  payment  of  the 
claims  of  all  nations  against  Venezuela,  the  tribunal  at  The  Hague  shall 
decide  how  the  said  revenues  shall  be  divided  between  the  blockading 

^Official  report,  p.  17.  For  the  German  text,  see  Appendix,  p.  445.  Identical 
protocols  were  signed  on  the  same  date  by  Venezuela  with  Great  Britain  and  Italy 
respectively,  both  of  which  were  done  in  the  English  language.  Belgium,  Mexico, 
the  Netherlands,  Sweden  and  Norway,  and  the  United  States  signed  as  ad- 
herents (post,  p.  64).  Spain,  though  not  a signatory,  also  adhered  and  was 
represented  by  counsel  before  the  tribunal. 

^Post,  pp.  65,  67.  70,  74. 


I 


THE  VENEZUELAN  PREFERENTIAL  CASE 


63 


Powers,  on  the  one  hand,  and  the  other  creditor  Powers,  on  the  other 
hand,  and  its  decision  shall  be  final. 

If  preferential  or  separate  treatment  is  not  given  to  the  blockading 
Powers,  the  tribunal  shall  decide  how  the  said  revenues  shall  be  dis- 
tributed among  all  the  creditor  Powers,  and  the  parties  hereto  agree 
that  the  tribunal,  in  that  case,  shall  consider,  in  connection  with  the 
payment  of  the  claims  out  of  the  thirty  per  cent,  any  preference  or 
pledges  of  revenue  enjoyed  by  any  of  the  creditor  Powers,  and  shall 
accordingly  decide  the  question  of  distribution  so  that  no  Power  shall 
obtain  preferential  treatment,  and  its  decision  shall  be  final. 

Article  2 

The  facts  on  which  shall  depend  the  decision  of  the  questions  stated 
in  Article  1 shall  be  ascertained  in  such  manner  as  the  tribunal  may 
determine. 


Article  3 

The  Emperor  of  Russia  shall  be  invited  to  name  and  appoint  from 
the  members  of  the  Permanent  Court  of  The  Hague  three  arbitrators 
to  constitute  the  tribunal  which  is  to  determine  and  settle  the  questions 
.submitted  to  it  under  and  by  virtue  of  this  agreement. 

None  of  the  arbitrators  so  appointed  shall  be  a subject  or  citizen  of 
any  of  the  signatory  or  creditor  Powers. 

This  tribunal  shall  meet  on  the  first  day  of  September  1903,  and 
shall  render  its  decision  within  six  months  thereafter. 

Article  4 

The  proceedings  shall  be  carried  on  in  the  English  language  but 
arguments  may,  with  the  permission  of  the  tribunal,  be  made  in  any 
other  language  also. 

Except  as  herein  otherwise  stipulated,  the  procedure  shall  be  regu- 
lated by  the  Convention  of  The  Hague  of  July  29th,  1899. 

Article  5 

The  tribunal  shall,  subject  to  the  general  provision  laid  down  in 
Article  57  of  the  international  Convention  of  July  29th,  1899,  also  de- 
cide how,  when  and  by  whom  the  costs  of  this  arbitration  shall  be  paid. 


64 


THE  HAGUE  COURT  REPORTS 


Article  6 

Any  nation  having  claims  against  Venezuela  may  join  as  a party  in 
the  arbitration  provided  for  by  this  agreement 

Done  in  duplicate  at  Washington  this  seventh  day  of  May,  one 
thousand  nine  hundred  and  three. 

(Signed)  Herbert  W.  Bowen 
(Signed)  Sternburg 


The  undersigned  nations  having  claims  against  Venezuela  hereby 
join  with  her  as  parties  in  the  arbitration  provided  for  in  the  foregoing 
protocol.^ 

For  the  United  States  of  America, 

John  Hay 

For  the  Republic  of  Mexico, 

[seal]  M.  de  Azpiroz 

For  Sweden  and  Norway, 

[seal]  May  27,  1903.  A.  Grip 

L’Ambassadeur  de  France,  dument  autorise  et  agissant  au  nom  de 
son  Gouvernement,  adhere  au  protocole  ci-dessus,  sous  reserve  qu'il 
est  bien  entendu  que  I’article  4 du  dit  protocole  ne  fera  pas  obstacle  a 
I’application  de  la  disposition  de  I’article  38  de  I’acte  de  La  Haye,  aux 
termes  de  laquelle  c’est  le  tribunal  arbitral  qui  decide  du  choix  des 
langues  dont  il  fera  usage  et  dont  I’emploi  sera  autorise  devant  lui. 
1"  Juin  1903. 

[seal]  Jusserand 

Le  Ministre  de  Belgique,  dument  autorise  et  agissant  au  nom  de  son 
Gouvernement  adhere  au  protocole  ci-dessus. 

12  Juin  1903. 

[seal]  Bn.  Moncheur 

Le  Ministre  des  Pays-Bas,  dument  autorise  et  agissant  au  nom  de 
son  Gouvernement  adhere  au  protocole  ci-dessus. 

Washington,  le  13  Juin  1903. 

[seal]  Gevers 

'Malloy,  Treaties,  Conventions,  etc.,  between  the  United  States  and  Other 
Powers,  vol.  2,  p.  1876. 


THE  VENEZUELAN  PREFERENTIAL  CASE 


65 


ADDITIONAL  DOCUMENTS 

Protocol  of  Agreement  between  the  Governments  of  Germany  and 

Venezuela  for  the  settlement  of  German  claims. — Signed  at  Wash- 
ington, February  ij, 

Whereas  certain  differences  have  arisen  between  Germany  and 
the  United  States  of  Venezuela  in  connection  with  the  claims  of  Ger- 
man subjects  against  the  Venezuelan  Government,  the  undersigned, 
Baron  Speck  von  Sternburg,  His  Imperial  German  Majesty’s  Envoy 
Extraordinary  and  Minister  Plenipotentiary,  duly  authorized  by  the 
Imperial  German  Government,  and  Mr.  Herbert  W.  Bowen,  duly 
authorized  by  the  Government  of  Venezuela,  have  agreed  as  follows; 

Article  1 

The  Venezuela  Government  recognize  in  principle  the  justice  of 
the  claims  of  German  subjects  presented  by  the  Imperial  German 
Government. 

Article  2 

The  German  claims  originating  from  the  Venezuelan  civil  wars  of 
1898  to  1900  amount  to  1,718,815.67  bolivares.  The  Venezuelan 
Government  undertake  to  pay  of  said  amount  immediately  in  cash 
the  sum  of  £5,500=137,500  bolivares  (five  thousand  five  hundred 
pounds=one  hundred  thirty-seven  thousand  five  hundred  bolivares) 
and  for  the  payment  of  the  rest  to  redeem  five  bills  of  exchange  for 
the  corresponding  installments  payable  on  the  15th  of  March,  the 
15th  of  April,  the  15th  of  May,  the  15th  of  June,  and  the  15th  of 
July,  1903,  to  the  Imperial  German  diplomatic  agent  in  Caracas. 
These  bills  shall  be  drawn  immediately  by  Mr.  Bowen  and  handed 
over  to  Baron  Sternburg. 

Should  the  Venezuelan  Government  fail  to  redeem  one  of  these 
bills,  the  payment  shall  be  made  from  the  customs  receipts  of  La 
Guaira  and  Puerto  Cabello,  and  the  administration  of  both  ports 
shall  be  put  in  charge  of  Belgian  custom-house  officials  until  the  com- 
plete extinction  of  the  said  debts. 

Article  3 

The  German  claims  not  mentioned  in  Articles  2 and  6,  in  particu- 
lar the  claims  resulting  from  the  present  Venezuelan  civil  war,  the 


J^Official  report,  p.  5.  For  the  German  text,  see  Appendix,  p.  447. 


66 


THE  HAGUE  COURT  REPORTS 


claims  of  the  Great  Venezuelan  Railroad  Company  against  the  Ven- 
ezuelan Government  for  passages  and  freight,  the  claims  of  the  engi- 
neer Carl  Henkel  in  Hamburg  and  of  the  Beton  and  Monierbau  Com- 
pany (Limited)  in  Berlin  for  the  construction  of  a slaughterhouse 
at  Caracas,  are  to  be  submitted  to  a mixed  commission. 

Said  commission  shall  decide  both  whether  the  different  claims  are 
materially  well  founded  and  also  upon  their  amount.  The  Venezu- 
elan Government  admit  their  liability  in  cases  where  the  claim  is  for 
injury  to,  or  wrongful  seizure  of,  property  and  consequently  the  com- 
mission will  not  have  to  decide  the  question  of  liability,  but  only 
whether  the  injury  to  or  the  seizure  of  property  were  wrongful  acts 
and  what  amount  of  compensation  is  due. 

Article  4 

The  mixed  commission  mentioned  in  Article  3 shall  have  its  seat 
in  Caracas.  It  shall  consist  of  two  members,  one  of  which  is  to  be 
appointed  by  the  Imperial  German  Government,  the  other  by  the 
Government  of  Venezuela.  The  appointments  are  to  be  made  before 
May  1,  1903.  In  each  case  where  the  two  members  come  to  an 
agreement  on  the  claims,  their  decision  shall  be  considered  as  final ; 
in  cases  of  disagreement,  the  claims  shall  be  submitted  to  the  deci- 
sion of  an  umpire  to  be  nominated  by  the  President  of  the  United 
States  of  America. 

Article  5 

For  the  purpose  of  paying  the  claims  specified  in  Article  3 as  well 
as  similar  claims  preferred  by  other  Powers  the  Venezuelan  Govern- 
ment shall  remit  to  the  representative  of  the  Bank  of  England  in  Car- 
acas in  monthly  instalments,  beginning  from  March  1,  1903,  30  per 
cent  of  the  customs  revenues  of  La  Guaira  and  Puerto  Cabello,  which 
shall  not  be  alienated  to  any  other  purpose.  Should  the  Venezuelan 
Government  fail  to  carry  out  this  obligation  Belgian  customs  officials 
shall  be  placed  in  charge  of  the  customs  of  the  two  ports  and  shall 
administer  them  until  the  liabilities  of  the  Venezuelan  Government 
in  respect  to  the  above-mentioned  claims  shall  have  been  discharged. 

Any  questions  as  to  the  distribution  of  the  customs  revenues  spe- 
cified in  the  foregoing  paragraph,  as  well  as  to  the  rights  of  Germany, 
Great  Britain  and  Italy  to  a separate  payment  of  their  claims,  shall 
be  determined  in  default  of  another  agreement,  by  the  permanent 
tribunal  of  arbitration  at  The  Hague.  All  other  Powers  interested 


THE  VENEZUELAN  PREFERENTIAL  CASE 


67 


may  join  as  parties  in  the  arbitration  proceedings  against  the  above- 
mentioned  three  Powers. 

Article  6 

The  Venezuelan  Goverment  undertake  to  make  a new  satisfac- 
tory arrangement  to  settle  simultaneously  the  five  per  cent  Venezu- 
elan loan  of  1896  which  is  chiefly  in  German  hands,  and  the  entire 
exterior  debt.  In  this  arrangement  the  State  revenues  to  be  employed 
for  the  service  of  the  debt  are  to  be  determined  without  prejudice  to 
the  obligations  already  existing. 

Article  7 

The  Venezuelan  men-of-war  and  merchant  vessels  captured  by  the 
German  naval  forces  shall  be  returned  to  the  Venezuelan  Government 
in  their  actual  condition.  No  claims  for  indemnity  can  be  based  on 
the  capture  and  on  the  holding  of  these  vessels,  neither  will  an  in- 
demnity be  granted  for  injury  to  or  destruction  of  the  same. 

Article  8 

Immediately  upon  the  signature  of  this  protocol  the  blockade  of  the 
Venezuelan  ports  shall  be  raised  by  the  Imperial  German  Govern- 
ment in  concert  with  the  Governments  of  Great  Britain  and  Italy. 
Also  the  diplomatic  relations  between  the  Imperial  German  and  the 
Venezuelan  Government  will  be  resumed. 

Done  in  duplicate  in  German  and  English  texts  at  Washington  this 
thirteenth  day  of  February,  one  thousand  nine  hundred  and  three. 

(Signed)  Sternburg 
(Signed)  Herbert  W.  Bowen 


Protocol  between  Great  Britain  and  the  United  States  of  Venezuela 
relating  to  the  settlement  of  the  British  claims  and  other  matters. 
— Signed  at  Washington,  February  jj,  ipo^.^ 

Whereas  certain  differences  have  arisen  between  Great  Britain  and 
the  United  States  of  Venezuela  in  connection  with  the  claims  of 
British  subjects  against  the  Venezuelan  Government,  the  undersigned, 
his  Excellency  the  Right  Honorable  Sir  Michael  H.  Herbert,  K.  C. 


Official  Report,  p.  9. 


68 


THE  HAGUE  COURT  REPORTS 


M.  G.,  C.  B.,  His  Britannic  Majesty’s  Ambassador  Extraordinary 
and  Plenipotentiary  to  the  United  States  of  America,  and  Mr.  Her- 
bert W.  Bowen,  duly  authorized  thereto  by  the  Government  of  Ven- 
ezuela, have  agreed  as  follows : 

Article  1 

The  Venezuelan  Government  declare  that  they  recognize  in  prin- 
ciple the  justice  of  the  claims  which  have  been  preferred  by  His 
Majesty’s  Government  on  behalf  of  British  subjects. 

Article  2 

The  Venezuelan  Government  will  satisfy  at  once,  by  payment  in 
cash  or  its  equivalent,  the  claims  of  British  subjects,  which  amount 
to  about  £5,500,  arising  out  of  the  seizure  and  plundering  of  British 
vessels  and  the  outrages  on  their  crews,  and  the  maltreatment  and 
false  imprisonment  of  British  subjects. 

Article  3 

The  British  and  Venezuelan  Governments  agree  that  the  other 
British  claims,  including  claims  by  British  subjects  other  than  those 
dealt  with  in  Article  6 hereof,  and  including  those  preferred  by  the 
railway  companies,  shall,  unless  otherwise  satisfied,  be  referred  to  a 
mixed  commission  constituted  in  the  manner  defined  in  Article  4 of 
this  protocol,  and  which  shall  examine  the  claims  and  decide  upon 
the  amount  to  be  awarded  in  satisfaction  of  each  claim. 

The  Venezuelan  Government  admit  their  liability  in  cases  where 
the  claim  is  for  injury  to,  or  wrongful  seizure  of  property,  and  con- 
sequently the  questions  which  the  mixed  commission  will  have  to 
decide  in  such  cases  will  only  be — 

(o)  Whether  the  injury  took  place,  and  whether  the  seizure  was 
wrongful  and 

(b)  If  so,  what  amount  of  compensation  is  due. 

In  other  cases  the  claims  shall  be  referred  to  the  mixed  commission 
without  reservation. 

Article  4. 

The  mixed  commission  shall  consist  of  one  British  member  and  one 
Venezuelan  member.  In  each  case  where  they  come  to  an  agreement, 
their  decision  shall  be  final.  In  cases  of  disagreement,  the  claims 
shall  be  referred  to  the  decision  of  an  umpire  nominated  by  the  Pre-- 
ident  of  the  United  States  of  America. 


THE  VENEZUELAN  PREFERENTIAL  CASE 


69 


Article  5 

The  Venezuelan  Government  being  willing  to  provide  a sum  suf- 
ficient for  the  payment  within  a reasonable  time  of  the  claims  speci- 
fied in  Article  3 and  similar  claims  preferred  by  other  Governments, 
undertake  to  assign  to  the  British  Government,  commencing  the  Ist 
day  of  March,  1903,  for  this  purpose,  and  to  alienate  to  no  other 
purpose,  thirty  per  cent  in  monthly  payments  of  the  customs  revenues 
of  La  Guaira  and  Puerto  Cabello.  In  the  case  of  failure  to  carrj^ 
out  this  undertaking,  Belgian  officials  shall  be  placed  in  charge  of 
the  customs  of  the  two  ports,  and  shall  administer  them  until  the 
liabilities  of  the  Venezuelan  Government,  in  respect  of  the  above- 
mentioned  claims,  shall  have  been  discharged. 

Any  question  as  to  the  distribution  of  the  customs  revenues  so  to 
be  assigned  and  as  to  the  rights  of  Great  Britain,  Germany,  and  Italy 
to  a separate  settlement  of  their  claims,  shall  be  determined,  in  default 
of  arrangement,  by  the  tribunal  at  The  Hague,  to  which  any  other 
Power  interested  may  appeal. 

Pending  the  decision  of  the  Hague  tribunal,  the  said  thirty  per 
cent  of  the  receipts  of  the  customs  of  the  ports  of  La  Guaira  and 
Puerto  Cabello  are  to  be  paid  over  to  the  representatives  of  the  Bank 
of  England  at  Caracas. 

Article  6 

The  Venezuelan  Government  further  undertake  to  enter  into  a 
fresh  arrangement  respecting  the  external  debt  of  Venezuela,  with  a 
view  to  the  satisfaction  of  the  claims  of  the  bondholders.  This  ar- 
rangement shall  include  a definition  of  the  sources  from  which  the 
necessary  payments  are  to  be  provided. 

Article  7 

The  British  and  Venezuelan  Governments  agree  that,  inasmuch  as 
it  may  be  contended  that  the  establishment  of  a blockade  of  Venezu- 
elan ports  by  the  British  naval  forces  has,  ipso  facto,  created  a state 
of  war  between  Great  Britain  and  Venezuela,  and  that  any  treaty 
existing  between  the  two  countries  has  been  thereby  abrogated,  it 
shall  be  recorded  in  an  exchange  of  notes  between  the  undersigned 
that  the  convention  between  Great  Britain  and  Venezuela  of  October 
29,  1834,  which  adopted  and  confirmed,  mutatis  mutandis,  the  treaty 
of  April  18,  1825,  between  Great  Britain  and  the  State  of  Colombia, 
shall  be  deemed  to  be  renewed  and  confirmed,  or  provisionally  re- 


70 


THE  HAGUE  COURT  REPORTS 


newed  and  confirmed,  pending  conclusion  of  a new  treaty  of  amity 
and  commerce. 

Article  8 

Immediately  upon  the  signature  of  this  protocol  arrangements  will 
be  made  by  His  Majesty’s  Government,  in  concert  with  the  Govern- 
ments of  Germany  and  Italy,  to  raise  the  blockade  of  the  Venezuelan 
ports. 

His  Majesty’s  Government  will  be  prepared  to  restore  the  vessels 
of  the  Venezuelan  navy  which  have  been  seized,  and  further  to 
release  any  other  vessels  captured  under  the  Venezuelan  flag,  on  the 
receipt  of  a guarantee  from  the  Venezuelan  Government  that  they 
will  hold  His  Majesty’s  Government  indemnified  in  respect  of  any 
proceedings  which  might  be  taken  against  them  by  the  owners  of 
such  ships  or  of  goods  on  board  them. 

Article  9 

The  treaty  of  amity  and  commerce  of  October  29,  1834,  having 
been  confirmed  in  accordance  with  the  terms  of  Article  7 of  this 
protocol.  His  Majesty’s  Government  will  be  happy  to  renew  diplo- 
matic relations  with  the  Government  of  Venezuela. 

Done  in  duplicate  at  Washington,  this  13th  day  of  February,  1903. 

(Signed)  Michael  H.  Herbert 
(Signed)  Herbert  W.  Bowen 


Protocol  of  Agreement  between  Italy  and  Venezuela  relative  to  the 
settlement  of  Italian  claims. — Signed  at  Washington,  February  ij, 
1903.^ 

Whereas  certain  differences  have  arisen  between  Italy  and  the 
United  States  of  Venezuela  in  connection  with  the  Italian  claims 
against  the  Venezuelan  Government,  the  undersigned,  his  Excellency 
Nobile  Edmondo  Mayor  des  Planches,  Commander  of  the  Orders  of 
SS.  Maurice  and  Lazarus  and  the  Crown  of  Italy,  Ambassador  Ex- 
traordinary and  Plenipotentiary  of  His  Majesty  the  King  of  Italy 
to  the  United  States  of  America,  and  Mr.  Herbert  W.  Bowen  duly 
authorized  thereto  by  the  Government  of  Venezuela,  have  agreed  as 
follows : 


^Official  Report,  p.  13. 


THE  VENEZUELAN  PREFERENTIAL  CASE 


71 


Article  1 

The  Venezuelan  Government  declare  that  they  recognize  in  prin- 
ciple the  justice  of  claims  which  have  been  preferred  by  His  Majesty’s 
Government  on  behalf  of  Italian  subjects. 

Article  2 

The  Venezuelan  Government  agree  to  pay  to  the  Italian  Govern- 
ment, as  a satisfaction  of  the  point  of  honor,  the  sum  of  £5,500,  (five 
thousand  five  hundred  pounds  sterling),  in  cash  or  its  equivalent, 
which  sum  is  to  be  paid  within  sixty  days. 

Article  3 

The  Venezuelan  Government  recognize,  accept  and  will  pay  the 
amount  of  the  Italian  claims  of  the  first  rank  derived  from  the  revo- 
lutions [of]  1898-1900,  in  the  sum  of  2,810,255  (two  million  eight 
hundred  and  ten  thousand,  two  hundred  and  fifty-five)  boUvares. 

It  is  expressly  agreed  that  the  payment  of  the  above  Italian  claims 
of  the  first  rank  will  be  made  without  being  the  same  claims  or  the 
same  sum  submitted  to  the  mixed  commission  and  without  any  revi- 
sion or  objection. 

Article  4 

The  Italian  and  Venezuelan  Governments  agree  that  all  the  re- 
maining Italian  claims,  without  exception,  other  than  those  dealt  with- 
in Article  7 hereof,  shall,  unless  otherwise  satisfied,  be  referred  to  a 
mixed  commission  to  be  constituted,  as  soon  as  possible,  in  the  man- 
ner defined  in  Article  6 of  the  protocol,  and  which  shall  examine  the 
claims  and  decide  upon  the  amount  to  be  awarded  in  satisfaction  of 
each. 

The  Venezuelan  Government  admit  their  liability  in  cases  where 
the  claim  is  for  injury  to  persons  and  property  and  for  wrongful 
seizure  of  the  latter,  and  consequently  the  questions  which  the  mixed 
commission  will  have  to  decide  in  such  cases  will  only  be : 

(a)  Whether  the  injury  took  place  or  whether  the  seizure  was 
wrongful  and 

(b)  If  so,  what  amount  of  compensation  is  due. 

In  other  cases  the  claims  will  be  referred  to  the  mixed  commission 
v/ithout  reservation. 


72 


THE  HAGUE  COURT  REPORTS 


Article  5 

The  Venezuelan  Government  being  willing  to  provide  a sum  suf- 
ficient for  the  payment,  within  a reasonable  time,  of  the  claims  speci- 
fied in  Articles  3 and  4 and  similar  claims  preferred  by  other  Gov- 
ernments, undertake  and  obligate  themselves  to  assign  to  the  Italian 
Government,  commencing  the  first  day  of  March  1903,  for  this  pur- 
pose, and  to  alienate  to  no  other  purpose,  thirty  per  cent  of  the  cus- 
toms revenues  of  La  Guaira  and  Puerto  Cabello.  In  the  case  of  failure 
to  carry  out  this  undertaking  and  obligation,  Belgian  officials  shall  be 
placed  in  charge  of  the  two  ports,  and  shall  administer  them  until 
the  liabilities  of  the  Venezuelan  Government,  in  respect  of  the  above- 
mentioned  claims,  shall  have  been  discharged. 

Any  question  as  to  the  distribution  of  the  customs  revenues  so  to 
be  assigned,  and  as  to  the  rights  of  Italy,  Great  Britain,  and  Germany 
to  a separate  settlement  of  their  claims,  shall  be  determined,  in  de- 
fault of  arrangement,  by  the  tribunal  at  The  Hague,  to  which  any 
other  Power  interested  may  appeal. 

Pending  the  decision  of  The  Hague  tribunal  the  said  thirty  per  cent 
of  the  receipts  of  the  customs  of  the  ports  of  La  Guaira  and  Puerto 
Cabello  are  to  be  paid  over  to  the  representatives  of  the  Bank  of 
England  at  Caracas. 

Article  6 

The  mixed  commission  shall  consist  of  one  Italian  member  and  one 
Venezuelan  member. 

In  each  case,  where  they  come  to  an  agreement,  their  decision  shall 
be  final.  In  case  of  disagreement,  the  claims  shall  be  referred  to  the 
decision  of  an  umpire  nominated  by  the  President  of  the  United  States 
of  America. 

Article  7 

The  Venezuelan  Government  further  undertake  to  enter  into  a fresh 
arrangement  respecting  the  external  debt  of  Venezuela  with  a view  to 
the  satisfaction  of  the  claims  of  the  bondholders.  This  arrangement 
shall  include  a definition  of  the  sources  from  which  the  necessary  pay- 
ments are  to  be  provided. 

Article  8 

The  treaty  of  amity,  commerce,  and  navigation  between  Italy  and 
Venezuela  of  June  19,  1861,  is  renewed  and  confirmed.  It  is  how- 
ever expressly  agreed  between  the  two  Governments  that  the  inter- 
pretation to  be  given  to  the  Articles  4 and  26  is  the  following: 


THE  VENEZUELAN  PREFERENTIAL  CASE 


73 


According  to  the  Article  4,  Italians  in  Venezuela  and  Venezuelans  in 
Italy  can  not  in  any  case  receive  a treatment  less  favorable  than  the 
natives,  and,  according  to  Article  26,  Italians  in  Venezuela  and  Ven- 
ezuelans in  Italy  are  entitled  to  receive,  in  every  matter  and  especially 
in  the  matter  of  claims,  the  treatment  of  the  most  favored  nation,  as 
it  is  established  in  the  same  Article  26. 

If  there  is  doubt  or  conflict  between  the  two  articles,  the  Article  26 
will  be  followed. 

It  is  further  specifically  agreed  that  the  above  treaty  shall  never  be 
invoked,  in  any  case,  against  the  provisions  of  the  present  protocol. 

Article  9 

At  once  upon  the  signing  of  this  protocol,  arrangements  shall  be 
made  by  His  Majesty’s  Government,  in  concert  with  the  Governments 
of  Germany  and  Great  Britain,  to  raise  the  blockade  of  the  Venezu- 
elan ports. 

His  Majesty’s  Government  will  be  prepared  to  restore  the  vessels 
of  the  Venezuelan  navy  which  may  have  been  seized,  and  further  to 
release  any  other  vessel  captured  under  the  Venezuelan  flag  during 
the  blockade. 

Article  10 

The  treaty  of  amity,  commerce,  and  navigation  of  June  19th,  1861, 
having  been  renewed  and  confirmed  in  accordance  with  the  terms  of 
Article  8 of  this  protocol.  His  Majesty’s  Government  declare  that  they 
will  be  happy  to  re-establish  regular  diplomatic  relations  with  the 
Government  of  Venezuela. 

Washington,  D.  C.,  February  13,  1903. 

(Signed)  E.  Mayor  des  Planches 
(Signed)  Herbert  W.  Bowen 

We  interpret  our  three  protocols  to  mean  that  the  thirty  per  cent 
referred  to  therein,  of  the  total  income  of  the  custom-houses  of  La 
Guaira  and  Puerto  Cabello,  shall  be  delivered  to  the  representative  of 
the  Bank  of  England  at  Caracas,  and  that  the  said  thirty  per  cent  is 
not  assigned  to  any  one  Power  but  it  is  to  be  retained  by  the  said  rep- 
resentative of  the  Bank  of  England  in  Caracas  and  paid  out  by  him 
in  conformity  with  the  decision  rendered  by  the  tribunal  at  The 
Hague. 

Washington,  February  14th,  1903. 


74 


THE  HAGUE  COURT  REPORTS 


Protocol  of  an  Agreement  between  the  United  States  of  America  and 
the  Republic  of  Venezuela  for  submission  to  arbitration  of  all  un- 
settled claims  against  Venezuela. — Signed  at  Washington^  Febru- 
ary 17,  1903.^ 

The  United  States  of  America  and  the  Republic  of  Venezuela, 
through  their  representatives,  John  Hay,  Secretary  of  State  of  the 
United  States  of  America,  and  Herbert  W.  Bowen,  the  plenipotentiary 
of  the  Republic  of  Venezuela,  have  agreed  upon  and  signed  the  fol- 
lowing protocol. 

Article  1 

All  claims  owned  by  citizens  of  the  United  States  of  America  against 
the  Republic  of  Venezuela  which  have  not  been  settled  by  diplomatic 
agreement  or  by  arbitration  between  the  two  Governments,  and  which 
shall  have  been  presented  to  the  commission  hereinafter  named  by 
the  Department  of  State  of  the  United  States  or  its  Legation  at  Car- 
acas, shall  be  examined  and  decided  by  a mixed  commission,  which 
shall  %it  at  Caracas,  and  which  shall  consist  of  two  members,  one  of 
whom  is  to  be  appointed  by  the  President  of  the  United  States  and  the 
other  by  the  President  of  Venezuela. 

It  is  agreed  that  an  umpire  may  be  named  by  the  Queen  of  the 
Netherlands.  If  either  of  said  commissioners  or  the  umpire  should 
fail  or  cease  to  act,  his  successor  shall  be  appointed  forthwith  in  the 
same  manner  as  his  predecessor.  Said  commissioners  and  umpire 
are  to  be  appointed  before  the  first  day  of  May,  1903. 

The  commissioners  and  the  umpire  shall  meet  in  the  city  of  Car- 
acas on  the  first  day  of  June,  1903.  The  umpire  shall  preside  over 
their  deliberations,  and  shall  be  competent  to  decide  any  question  on 
which  the  commissioners  disagree.  Before  assuming  the  functions 
of  their  office  the  commissioners  and  the  umpire  shall  take  solemn 
oath  carefully  to  examine  and  impartially  decide,  according  to  justice 
and  the  provisions  of  this  convention,  all  claims  submitted  to  them, 
and  such  oaths  shall  be  entered  on  the  record  of  their  proceedings. 
The  commissioners,  or  in  case  of  their  disagreement,  the  umpire,  shall 
decide  all  claims  upon  a basis  of  absolute  equity,  without  regard  to 
objections  of  a technical  nature,  or  of  the  provisions  of  local  legisla- 
tion. 

^Malloy,  Treaties,  Conventions,  etc.,  between  the  United  States  and  Other 
Powers,  vol.  2,  p.  1870.  For  the  Spanish  text,  see  Appendix,  p.  449.  Similar 
protocols  were  signed  by  Venezuela  with  the  following  countries : Belgium 
(March  7,  1903),  France  (February  27,  1903),  Mexico  (February  26,  1^3), 
Netherlands  (February  28,  1903),  Spain  (April  2,  1903),  Sweden  and  Norway 
(March  10,  1903). 


THE  VENEZUELAN  PREFERENTIAL  CASE 


75 


The  decisions  of  the  commission,  and  in  the  event  of  their  disa- 
greement, those  of  the  umpire,  shall  be  final  and  conclusive.  They 
shall  be  in  writing.  All  awards  shall  be  made  payable  in  United 
States  gold,  or  its  equivalent  in  silver. 

Article  2 

The  commissioners,  or  umpire,  as  the  case  may  be,  shall  investi- 
gate and  decide  said  claims  upon  such  evidence  or  information  only 
as  shall  be  furnished  by  or  on  behalf  of  the  respective  Governments. 
They  shall  be  bound  to  receive  and  consider  all  written  documents  or 
statements  which  may  be  presented  to  them  by  or  on  behalf  of  the 
respective  Governments  in  support  of  or  in  answer  to  any  claim,  and 
to  hear  oral  or  written  arguments  made  by  the  agent  of  each  Govern- 
ment on  every  claim.  In  case  of  their  failure  to  agree  in  opinion 
upon  any  individual  claim,  the  umpire  shall  decide. 

Every  claim  shall  be  formally  presented  to  the  commissioners  within 
thirty  days  from  the  day  of  their  first  meeting,  unless  the  commis- 
sioners or  the  umpire  in  any  case  extend  the  period  for  presenting  the 
claim  not  exceeding  three  months  longer.  The  commissioners  shall 
be  bound  to  examine  and  decide  upon  every  claim  within  six  months 
from  the  day  of  its  first  formal  presentation,  and  in  case  of  their  dis- 
agreement, the  umpire  shall  examine  and  decide  within  a correspond- 
ing period  from  the  date  of  such  disagreement. 

Article  3 

The  commissioners  and  the  umpire  shall  keep  an  accurate  record 
of  their  proceedings.  For  that  purpose,  each  commissioner  shall  ap- 
point a secretary  versed  in  the  language  of  both  countries,  to  assist 
them  in  the  transaction  of  the  business  of  the  commission.  Except 
as  herein  stipulated,  all  questions  of  procedure  shall  be  left  to  the  de- 
termination of  the  c .mmission,  or  in  case  of  their  disagreement,  to 
the  umpire. 

Article  4 

Reasonable  compensation  to  the  commissioners  and  to  the  umpire 
for  their  services  and  expenses,  and  the  other  expenses  of  said  arbi- 
tration, are  to  be  paid  in  equal  moities  by  the  contracting  parties. 

Article  5 

In  order  to  pay  the  total  amount  of  the  claims  to  be  adjudicated  as 
aforesaid,  and  other  claims  of  citizens  or  subjects  of  other  nations. 


76 


THE  HAGUE  COURT  REPORTS 


the  Government  of  Venezuela  shall  set  apart  for  this  purpose,  and 
alienate  to  no  other  purpose,  beginning  with  the  month  of  March, 
1903,  thirty  per  cent  in  monthly  payments  of  the  customs  revenues 
of  La  Guaira  and  I\ierto  Cabello,  and  the  payments  thus  set  aside 
shall  be  divided  and  distributed  in  conformity  with  the  decision  of 
The  Hague  tribunal. 

In  case  of  the  failure  to  carry  out  the  above  agreement,  Belgian 
officials  shall  be  placed  in  charge  of  the  customs  of  the  two  ports,  and 
shall  administer  them  until  the  liabilities  of  the  Venezuelan  Govern- 
ment in  respect  to  the  above  claims  shall  have  been  discharged.  The 
reference  of  the  question  above  stated  to  the  Hague  tribunal  will  be 
the  subject  of  a separate  protocol. 

Article  6 

All  existing  and  unsatisfied  awards  in  favor  of  citizens  of  the 
United  States  shall  be  promptly  paid,  according  to  the  terms  of  the 
respective  awards. 

Washington,  D.  C.,  February  17,  1903. 

John  Hay  [seal] 

Herbert  W.  Bowen  [seal] 


THE  JAPANESE  HOUSE  TAX  CASE 

between 

FRANCE,  GERMANY,  GREAT  BRITAIN  and  JAPAN 
Decided  May  22,  1905 

Syllabus 

This  case  had  its  origin  in  the  extraterritorial  jurisdiction  which 
was  maintained  respecting  the  citizens  of  foreign  nations  resident  in 
Japan  prior  to  1894.  By  treaties  with  Great  Britain,  Germany  and 
France,  dated  respectively,  July  16,  1894, April  4,  1896,^  and  August 
4,  1896,®  this  practice  was  abandoned,  Japan  agreeing  to  set  aside  for 
perpetual  lease  to  citizens  or  subjects  of  foreign  nations  certain  tracts 
of  land  at  various  treaty  ports.  It  was  provided  that  no  conditions 
other  than  those  contained  in  the  leases  would  be  imposed  in  respect 
to  such  property.  Accordingly,  no  taxes  or  charges,  except  those 
named  in  the  leases,  were  paid  for  municipal  or  other  purposes  for  a 
number  of  years  subsequent  to  the  signature  of  the  treaties.  Finally, 
however,  the  Japanese  assumed  the  position  that  the  leases  had  refer- 
ence only  to  unimproved  land,  and  that  the  houses  or  other  improve- 
ments were  not  included.  The  interested  Governments  declined  to 
accede  to  Japan’s  view  and  the  question  was  referred,  by  a compromis 
dated  August  28,  1902,^  to  a tribunal  selected  from  the  panel  of  the 
Permanent  Court  of  Arbitration  at  The  Hague  as  follows : Gregers 
Gram  of  Norway,  Louis  Renault  of  France,  and  Itchiro  Motono  of 
Japan.  The  sessions  began  November  21,  1904,  and  ended  May  15, 
1905,  and  the  decision  was  rendered  May  22,  1905.  By  a majority 
opinion,  signed  by  the  French  and  Norwegian  members,  the  tribunal 
held  that : 

The  provisions  of  the  treaties  and  other  engagements  mentioned  in 
the  arbitration  protocols  not  only  exempt  the  lands  held  by  virtue  of 
the  perpetual  leases  granted  by  the  Japanese  Government  or  in  its 
name,  but  they  exempt  the  lands  and  the  buildings  of  every  nature 
constructed  or  which  may  be  constructed  on  these  lands  from  all  im- 
posts, taxes,  charges,  contributions,  or  conditions  whatsoever  other 
than  those  expressly  stipulated  in  the  leases  in  question. 

The  Japanese  member  dissented  from  this  decision  and  upheld  the 
contentions  of  his  Government. 

'^Post,  p.  89.  ^Post,  p.  91.  ^Post,  p.  92.  *Post,  p.  85. 


78 


THE  HAGUE  COURT  REPORTS 


AWARD  OF  THE  TRIBUNAL 

Award  of  the  tribunal  of  arbitration  constituted  in  virtue  of  the 
protocols  signed  at  Tokio,  August  28,  1902,  between  Japan,  on 
the  one  hand,  and  Germany,  France  and  Great  Britain  on  the 
other  hand. — The  Hague,  May  22,  1905/ 

Whereas,  according  to  the  protocols  signed  at  Tokio  on  August 
28,  1902,*  a disagreement  has  arisen  between  the  Government  of 
Japan  on  the  one  hand  and  the  Governments  of  Germany,  France, 
and  Great  Britain  on  the  other  regarding  the  real  meaning  and  scope 
of  the  following  provisions  of  the  respective  treaties  and  other 
agreements  existing  between  them,  namely: 

Paragraph  4,  Article  18,  of  the  treaty  of  commerce  and  naviga- 
tion of  April  4,  1896,  between  Japan  and  Germany:  “When  such 
incorporation  takes  place  [that  is  to  say,  when  the  several  foreign 
settlements  in  Japan  shall  have  been  incorporated  with  the  respective 
Japanese  communes],  the  existing  leases  in  perpetuity  under  which 
property  is  now  held  in  the  said  settlements  shall  be  confirmed,  and 
no  conditions  whatsoever  other  than  those  contained  in  such  exist- 
ing leases  shall  be  imposed  in  respect  of  such  property” ; and  para- 
graph 3 of  the  complementary  communication  of  the  same  date  from 
the  German  Secretary  for  Foreign  Affairs  to  the  Japanese  Minister 
at  Berlin : “3.  That,  as  the  proprietary  rights  in  the  settlements 

mentioned  in  Article  18  of  the  treaty  continue  to  belong  to  the 
Japanese  State,  the  owners  or  their  legal  successors  shall  not  have 
to  pay  duties  or  taxes  of  any  kind  for  their  land  except  the  contract 
ground  rent” ; and  the  clause  in  the  reply  of  the  Japanese  Minister  of 
the  same  date,  to  the  foregoing  communication : “That  he  entirely 
indorses  the  explanatory  statements  set  forth  therein,  in  Nos.  1 to  4, 
concerning  the  acquisition  of  real  rights  in  landed  property,  the 
construction  of  warehouses,  the  freedom  from  taxation  in  the  for- 
eign settlements,  and  the  preservation  of  duly-acquired  rights  after 
the  expiration  of  the  treaty” ; 

Paragraph  4,  Article  21,  of  the  revised  treaty  of  August  4,  1896, 
between  Japan  and  France:  “When  the  changes  above-indicated 

shall  have  taken  place  [that  is  to  say,  when  the  several  foreign  set- 

American  Journal  of  International  Law,  vol.  2,  p.  915.  For  the  original 
French  text,  see  Appendix,  p.  452. 

*Post,  p.  85. 


THE  JAPANESE  HOUSE  TAX  CASE 


79 


tlements  in  Japan  shall  have  been  incorporated  with  the  respective 
Japanese  communes  and  made  a part  of  the  municipal  system  of 
Japan;  and  when  the  competent  Japanese  authorities  shall  have 
assumed  all  municipal  obligations  and  duties,  and  the  municipal 
funds  and  property  belonging  to  such  settlements  shall  have  been 
transferred  to  said  Japanese  authorities],  the  leases  in  perpetuity, 
in  virtue  of  which  foreigners  now  possess  property  in  the  settle- 
ments, shall  be  confirmed,  and  property  of  that  character  shall  not 
be  subject  to  any  duties,  taxes,  charges,  contributions  or  conditions 
whatsoever,  other  than  those  expressly  stipulated  in  the  leases  in 
question” ; 

Paragraph  4 of  Article  18  of  the  revised  treaty  of  July  16,  1894, 
between  Japan  and  Great  Britain : “When  such  incorporation  takes 
place”  [that  is,  when  the  various  foreign  quarters  existing  in  Japan 
shall  have  been  incorporated  into  the  respective  communes  of  Ja- 
pan], “existing  leases  in  perpetuity  under  which  property  is  now 
held  in  the  said  settlements  shall  be  confirmed,  and  no  conditions 
whatsoever  other  than  those  contained  in  such  existing  leases  shall 
be  imposed  in  respect  of  such  property,” 

Whereas  the  Powers  at  variance  have  agreed  to  submit  their  dif- 
ferences to  the  decision  of  a tribimal  of  arbitration ; 

And  whereas  in  virtue  of  the  above-mentioned  protocols  the  Gov- 
ernments of  Germany,  France,  and  Great  Britain  have  designated  as 
arbitrator  Mr.  Louis  Renault,  Minister  Plenipotentiary,  member  of 
the  Institute  of  France,  professor  in  the  Faculty  of  Law  at  Paris, 
Jurisconsult  of  the  Department  of  Foreign  Affairs,  and  the  Gov- 
ernment of  Japan  has  designated  as  arbitrator  his  Excellency  Mr. 
Itchiro  Motono,  Envoy  Extraordinary  and  Minister  Plenipoten- 
tiary of  His  Majesty  the  Emperor  of  Japan  at  Paris,  Doctor  of 
Laws; 

And  whereas  the  two  above-mentioned  arbitrators  have  chosen  as 
umpire  Mr.  Gregers  Gram,  former  Minister  of  State  of  Norway, 
Provincial  Governor; 

And  whereas  the  tribunal  thus  composed  has  as  its  mission  to 
decide,  in  the  last  resort,  on  the  following  question : 

Do  the  provisions  of  the  treaties  and  other  engagements  herein- 
above mentioned  exempt  only  the  lands  held  by  virtue  of  the  per- 
petual leases  granted  by  the  Japanese  Government  or  in  its  name. 


80 


THE  HAGUE  COURT  REPORTS 


or  do  they  exempt  the  lands  and  the  buildings  of  every  nature  con- 
structed or  which  may  be  constructed  on  these  lands,  from  all  im- 
posts, taxes,  charges,  contributions,  or  conditions  whatsoever  other 
than  those  especially  stipulated  in  the  leases  in  question? 

Whereas  the  Japanese  Government  maintains  that  the  lands  alone 
are  exempt  from  the  payment  of  imposts  and  other  charges  to  the 
extent  which  has  just  been  indicated; 

And  whereas  the  Governments  of  Germany,  France,  and  Great 
Britain  claim,  on  the  contrary,  that  the  buildings  constructed  on 
these  lands  enjoy  the  same  exemption; 

And  whereas,  in  order  to  understand  the  nature  and  the  scope 
of  the  engagements  contracted  on  both  sides  through  the  perpetual 
leases  it  is  necessary  to  examine  several  arrangements  and  agree- 
ments concluded,  under  the  old  treaties,  between  the  Japanese  au- 
thorities and  the  representatives  of  several  Powers; 

And  whereas  from  these  acts  and  stipulations  inserted  in  the 
leases  it  is  shown : 

That  the  Japanese  Government  had  consented  to  lend  its  assist- 
ance for  the  creation  of  foreign  quarters  in  certain  cities  and  ports 
of  Japan,  open  to  the  citizens  of  other  nations; 

That  on  the  lands  designated  for  the  use  of  the  foreigners  in 
the  various  localities  the  Japanese  Government  has  executed,  at 
its  own  expense,  works  for  the  purpose  of  facilitating  their  urban 
occupation ; 

That  as  foreigners  are  not  allowed  to  acquire  ownership  of  lands 
situated  in  the  country  according  to  the  principles  of  Japanese  law, 
the  Government  has  given  them  a perpetual  lease  on  the  lands ; 

That  the  leases  determine  the  extent  of  the  lots  leased  and  stipu- 
late a fixed  annual  rent,  calculated  in  proportion  to  the  area  leased ; 

That  it  was  agreed  that  in  principle  the  foreign  quarters  should 
remain  outside  the  municipal  system  of  Japan,  but  that  they  were 
not  subjected  to  a uniform  organization; 

That  it  was  decided,  by  means  of  regulations,  how  the  various 
administrative  functions  should  be  provided  for,  and  that  it  was 
prescribed  that  the  holders  of  the  lands  should  be  obliged  to  con- 
tribute partially  toward  the  expenses  of  the  municipality  by  means 
of  dues  the  amount  and  mode  of  collection  of  which  were  deter- 
mined ; 


THE  JAPANESE  HOUSE  TAX  CASE 


81 


And  whereas  it  would  be  easy  to  explain  the  care  taken  in  word- 
ing these  documents  in  order  to  define  the  obligations  of  every  nature 
incumbent  on  foreigners  toward  the  Japanese  Government,  if  it 
were  understood  that  the  annual  rent  represented  not  only  the  price 
of  the  lease  but  also  the  counterpart  of  the  imposts  which  the  lessees 
would  have  been  owing  by  reason  of  the  situation  created  in  their 
favor  by  the  leases,  and  that,  consequently,  they  would  not,  in  this 
capacity,  have  to  bear  any  imposts  and  charges  but  those  expressly 
mentioned  in  the  said  leases ; 

And  whereas,  moreover,  it  is  not  denied  that  this  is  the  real  mean- 
ing of  this  document,  as  far  as  lands  are  concerned,  but  the  Japanese 
Government  alleges  that  the  leases  referred  only  to  the  bare  lands 
and  does  not  admit  that  the  buildings  erected  on  the  lands  shall  be 
comprised  in  the  stipulations  on  which  the  exemption  from  taxes 
would  be  based ; 

And  whereas  it  alleged  that  the  lands  alone  belonged  to  the  Gov- 
ernment, the  buildings  being,  on  the  contrary,  the  property  of  the 
lessees  and  that  in  consequence  the  immunity  in  question  can  only 
extend  to  the  real  estate  which  had  never  been  separated  from  the 
Government  domain;  and  whereas,  nevertheless,  the  question  to  be 
decided  is  whether,  from  the  Government’s  point  of  view,  the  build- 
ings erected  on  the  leased  lands  were,  by  mutual  consent,  considered 
as  accessories  of  these  lands  or  not,  and  the  solution  of  this  question 
does  not  depend  on  distinctions  drawn  from  a pretended  difference 
with  regard  to  the  ownership  of  the  real  estate ; 

And  whereas  the  tribimal  can  therefore  not  stop  to  take  up  the 
discussion  begim  on  this  subject  and  based  on  the  principles  of  civil 
law; 

And  whereas  the  lands  were  leased  for  the  purpose  of  building 
houses  on  them,  as  is  shown  at  once  by  the  situation  of  the  lands 
and  the  nature  of  the  improvements  made  thereon  by  the  Japanese 
Government ; 

And  whereas  the  obligation  to  erect  buildings  was  imposed  in 
some  localities  under  penalty  of  forfeiture,  and  the  leases  often  con- 
tained a clause  according  to  which  the  buildings  situated  on  the  lands 
should  become  the  property  of  the  Japanese  Government  in  case  the 
lessee  failed  to  fulfil  his  engagements; 

And  whereas  it  must  be  admitted  that  the  circumstances  just  re- 


82 


THE  HAGUE  COURT  REPORTS 


lated  offer  arguments  in  refutation  of  the  claim  that  the  soil  and 
the  buildings  constitute  entirely  different  objects  from  the  Govern- 
ment’s standpoint  in  the  relations  between  the  parties; 

And  whereas  in  concluding  these  acts  the  Japanese  Government 
acted  not  only  as  owner  of  the  lands  leased  but  also  in  its  capacity 
as  the  sovereign  Power  of  the  country; 

And  whereas  the  will  of  the  parties  was  consequently  the  law  in 
the  matter,  and,  in  order  to  determine  how  the  acts  were  really  in- 
terpreted we  must  examine  the  treatment  to  which  the  holders  of 
the  lands  have  actually  been  subjected  in  the  various  localities  as 
far  as  the  taxes  are  concerned ; 

And  whereas,  in  this  regard,  it  is  known  that,  according  to  a prac- 
tice which  has  never  varied  and  has  been  in  existence  for  a long  num- 
ber of  years,  not  only  the  lands  in  question  but  also  the  buildings 
erected  thereon  have  been  exempt  from  all  taxes,  imposts,  charges, 
contributions,  or  conditions  other  than  those  expressly  stipulated  in 
the  perpetual  leases; 

And  whereas  the  Government  of  Japan  maintains,  to  be  sure,  that 
this  state  of  affairs,  as  well  as  the  fiscal  immunity  which  was  en- 
joyed by  foreigners  in  general  in  that  country,  was  due  only  to  the 
circumstance  that  the  consular  tribunals  refused  to  give  the  neces- 
sary sanction  to  the  fiscal  laws  of  the  country ; 

Whereas,  however,  this  claim  is  unsustained  by  evidence  and  it 
is  not  even  alleged  that  the  Japanese  Government  ever  made  any 
reservations  with  respect  to  the  German,  French,  and  British  Gov- 
ernments for  the  purpose  of  maintaining  the  rights  which  it  says 
were  violated; 

And  whereas,  although  it  has  been  alleged  that  the  immunity 
enjoyed  by  foreigners  with  respect  to  taxes  under  the  old  treaties 
was  general  and  extended  to  foreigners  residing  outside  the  conces- 
sion in  question,  it  is  nevertheless  shown  from  information  furnished 
on  the  subject  of  the  holders  of  real  estate  (lands  and  houses)  at 
Hiogo  that  the  said  rule  was  not  universally  applied; 

And  whereas,  at  all  events,  the  actual  situation  is  not  doubtful, 
however  it  is  explained ; 

And  whereas,  from  the  standpoint  of  the  interpretation  of  the 
provisions  of  the  new  treaties  with  regard  to  which  there  is  a dis- 
pute among  the  parties : 


THE  JAPANESE  HOUSE  TAX  CASE 


83 


The  drafting  of  Article  18  of  the  treaty  between  Great  Britain 
and  Japan  (which  treaty  was  previous  to  the  two  others),  had  been 
preceded  by  propositions  to  place  foreigners  holding  lands  on  the 
same  footing  as  Japanese  subjects,  both  from  the  standpoint  of  the 
ownership  of  real  estate  which  had  been  granted  them  on  lease  and 
in  regard  to  the  payment  of  taxes  and  imposts,  but  it  was  after- 
wards agreed  upon  to  continue  the  system  which  had  prevailed  until 
then; 

And  the  Japanese  Government  claims,  to  be  sure,  that  the  ques- 
tion of  maintaining  the  status  quo  referred  only  to  the  lands,  but  this 
claim  is  not  substantiated  by  the  expressions  employed  during  the 
course  of  negotiations; 

And,  on  the  contrary,  the  representative  of  the  Japanese  Govern- 
ment who  took  the  initiative  in  order  to  reach  an  agreement  along 
these  lines  confined  himself  to  proposing  the  maintenance  of  the 
status  quo  in  the  foreign  settlements; 

And  it  is  not  to  be  presumed  that  the  delegate  of  Great  Britain, 
in  presenting  a project  worked  out  on  the  basis  of  said  proposition, 
intended  to  make  a restriction  with  regard  to  the  buildings,  which  is 
neither  shown  by  the  words  inserted  in  the  record  nor  by  the  purport 
of  the  article  proposed  by  him; 

And,  in  order  to  maintain  the  status  quo  integrally,  it  would  not 
be  sufficient  to  admit  that  the  fiscal  immunity,  which  up  to  that  time 
had  extended  to  both  lands  and  buildings  in  the  foreign  settlement, 
should  be  maintained  with  regard  to  the  soil  only  and  that  it  should 
cease  to  exist  as  far  as  the  houses  are  concerned ; 

And  this  must  especially  be  the  case  if  we  consider  that,  in  order 
to  conform  to  what  had  been  agreed  upon,  the  parties  did  not  con- 
fine themselves  to  drawing  up  a provision  with  regard  to  the  con- 
firmation of  the  leases,  but  added  that  no  conditions  whatsoever 
other  than  those  contained  in  such  existing  leases  shall  be  imposed 
with  respect  to  such  property; 

And  this  latter  clause  is  worded  still  more  explicitly  in  the  treaty 
with  France; 

And  whereas,  moreover,  the  Powers  did  not  speak  of  lands  in 
the  clauses  in  question  as  they  must  necessarily  have  done  if  the 
immunity,  contrary  to  what  had  been  practiced  up  to  that  time, 
ought  to  have  been  confined  to  the  lands ; 


84 


THE  HAGUE  COURT  REPORTS 


And  whereas,  on  the  contrary,  they  employed  expressions  which 
were  broad  enough  to  comprise  the  entire  situation  created  by  the 
leases  for  the  lessees; 

And  whereas  the  tribunal  can  not,  either,  admit  that  the  notes 
exchanged  between  the  German  and  Japanese  Governments  at  the 
time  of  conclusion  of  the  new  treaty  contained  explanations  of  such 
a nature  as  to  place  Germany  in  any  less  favorable  situation  than 
the  other  two  Powers ; 

And  whereas  the  Japanese  Government  has  desired  above  all  to 
derive  an  argument  from  the  fact  that  the  German  Government 
bused  fiscal  immunity  on  the  fact  that  foreigners  are  prohibited  from 
acquiring  ownership  to  lands  situated  in  Japan,  but  it  is  necessary 
in  this  regard  to  consider  that  the  buildings  had  really  always  had 
the  character  of  appurtenances  of  the  lands  from  the  standpoint  of 
taxes,  and  it  can  not  be  presumed  that  the  German  Government  in- 
tended to  renounce  the  advantages  allowed  in  favor  of  Great  Britain 
by  the  new  treaty,  which  would  moreover  be  in  contradiction  with 
the  clause  assuring  to  Germany  the  treatment  of  the  most-favored 
nation ; 

Therefore,  the  tribunal  of  arbitration,  by  majority  of  votes,  de- 
cides and  declares: 

The  provisions  of  the  treaties  and  other  engagements  mentioned 
in  the  arbitration  protocols  not  only  exempt  the  lands  held  by  virtue 
of  the  perpetual  leases  granted  by  the  Japanese  Government  or  in  its 
name,  but  they  exempt  the  lands  and  the  buildings  of  every  nature 
constructed  or  which  may  be  constructed  on  these  lands  from  all 
imf>osts,  taxes,  charges,  contributions,  or  conditions  whatsoever 
ether  than  those  expressly  stipulated  in  the  leases  in  question. 

Done  at  The  Hague,  in  the  building  of  the  Permanent  Court  of 
Arbitration,  on  May  22,  1905. 

(Signed)  G.'Gram 

L.  Renault 

At  the  time  of  the  proceeding  to  the  signature  of  the  present 
award,  availing  myself  of  the  privilege  conferred  by  Article  52,  para- 
graph 2,  of  the  Convention  for  the  pacific  settlement  of  international 
disputes,  concluded  at  The  Hague  on  July  29,  1899,  I wish  to  state 


THE  JAPANESE  HOUSE  TAX  CASE 


85 


niy  absolute  disagreement  with  the  majority  of  the  tribunal  with 
regard  to  both  the  groimds  and  the  decision  of  the  award. 

(Signed)  I.  Motono 


AGREEMENT  FOR  ARBITRATION 


Protocol  between  Great  Britain  and  Japan  for  submitting  to  arbitra- 
tion certain  questions  as  to  the  interpretation  of  treaties  with  Japan 
with  regard  to  leases  held  in  perpetuity. — Signed  at  Tokio,  August 
28,  igo2?- 

Whereas,  a dispute  has  arisen  between  the  Government  of  Japan  on 
the  one  side  and  the  Governments  of  Great  Britain,  France  and  Ger- 
many on  the  other,  respecting  the  true  intent  and  meaning  of  the  fol- 
lowing provisions  of  the  treaties  and  other  engagements  respectively 
existing  between  them,  that  is  to  say: 

Paragraph  4,  Article  18,  of  the  treaty  of  commerce  and  navigation 
of  April  4,  1896,  between  Japan  and  Germany:  “Sobald  diese  Einver- 
leibung  erfolgt,”  [that  is  to  say:  when  the  several  foreign  settlements 
in  Japan  shall  have  been  incorporated  with  the  respective  Japanese 
communes],  “sollen  die  bestehenden,  zietlich  unbegrenzten  Ueberlas- 
sungsvertrage,  unter  welchen  jetzt  in  den  gedachten  Niederlassimgen 
Grundstiicke  besessen  werden,  bestatigt  und  hinsichtlich  dieser  Grund- 
stiicke  sollen  keine  Bedingungen  irgend  einer  anderen  Art  auferlegt 
werden,  als  sie  in  den  bestehenden  Ueberlassungsvertragen  enthalten 
sind”^ ; and  § 3 of  the  complementary  communication  of  the  same  date 
from  the  German  Secretary  for  Foreign  Affairs  to  the  Japanese  Minis- 
ter at  Berlin : “3,  dass,  da  das  Eigenthum  an  den  im  Artikel  XVIII  des 
Vertrages  erwahnten  Niederlassungsgrundstiicken  dem  Japanischen 
Staate  verbleibt,  die  Besitzer  oder  deren  Rechtsnachfolger  fiir  ihre 
Grundstiicke  ausser  dem  kontraktmassigen  Grundzins  Abgaben  oder 
Steuern  irgend  welcher  Art  nicht  zu  entrichten  haben  werden”® ; and 


^Official  report,  p.  13.  Similar  protocols  between  France  and  Japan  and  be- 
tween Germany  and  Japan  were  also  signed  on  August  28,  1902.  For  the  original 
German  and  French  texts,  see  Appendix,  pp.  457,  461. 

^Translation  : When  such  incorporation  takes  place  [ ],  the  existing 

leases  in  perpetuity  under  which  property  is  now  held  in  the  said  settlements 
shall  be  confirmed,  and  no  conditions  whatsoever  other  than  those  contained  in 
such  existing  leases  shall  be  imposed  in  respect  of  such  property. 

^Translation  : 3.  That,  as  the  proprietary  rights  in  the  settlements  men- 
tioned in  Article  18  of  the  treaty  continue  to  belong  to  the  Japanese  State,  the 
owners  or  their  legal  successors  shall  not  have  to  pay  duties  or  taxes  of  any 
kind  for  their  land  except  the  contract  ground  rent. 


86 


THE  HAGUE  COURT  REPORTS 


the  clause  in  the  reply  of  the  Japanese  Minister  of  the  same'date,  to 
the  foregoing  communication:  “dass  die  darin  vmter  Nummer  1 bis  4 
zum  Ausdruck  gebrachten  Voraussetzungen,  welche  den  Erwerb  ding- 
licher  Rechte  an  Grundstiicken,  die  Errichtung  von  Waarenhausern, 
die  Steuerfreiheit  der  Grundstiicke  in  den  Fremdenniederlassungen 
und  die  Erhaltung  wohlerworbener  Rechte  nach  Ablauf  des  Vertrages 
zum  Gegenstande  haben,  in  alien  Punkten  zutreffend  sind”^ ; 

Paragraph  4,  Article  21,  of  the  revised  treaty  of  August  4,  1896, 
between  Japan  and  France:  “Lorsque  les  changements  ci-dessus  indi- 
ques  auront  ete  effectues,”  [that  is  to  say:  when  the  several  foreign 
settlements  in  Japan  shall  have  been  incorporated  with  the  respective 
Japanese  communes  and  made  a part  of  the  municipal  system  of 
Japan ; and  when  the  competent  Japanese  authorities  shall  have  as- 
sumed all  municipal  obligations  and  duties,  and  the  municipal  funds 
and  property  belonging  to  such  settlements  shall  have  been  transferred 
to  said  Japanese  authorities],  “les  baux  a perpetuite  en  vertu  desquels 
les  etrangers  possedent  actuellement  des  proprietes  dans  les  quartiers 
seront  confirmes,  et  les  proprietes  de  cette  nature  ne  donneront  lieu 
a aucuns  impots,  taxes,  charges,  contributions  ou  conditions  quelcon- 
ques  autres  que  ceux  expressement  stipules  dans  les  baux  en  ques- 
tion”®; and 

» Paragraph  4,  Article  18,  of  the  revised  treaty  of  July  16,  1894,  be- 
tween Japan  and  Great  Britain:  “When  such  incorporation  takes 

place  [that  is  to  say,  when  the  several  foreign  settlements  in  Japan 
shall  have  been  incorp>orated  with  the  respective  Japanese  communes], 
existing  leases  in  perpetuity  under  which  property  is  now  held  in 
the  said  settlements  shall  be  confirmed,  and  no  conditions  whatsoever 
other  than  those  contained  in  such  existing  leases  shall  be  imposed  in 
respect  of  such  property” ; and 

Whereas,  the  controversy  is  not  amenable  to  ordinary  diplomatic 
methods ; and 

W^hereas,  the  Powers  at  variance,  co-signatories  of  the  Convention 
of  The  Hague  for  the  peaceful  adjustment  of  international  differences, 

iTranslation  : That  he  entirely  indorses  the  explanatory  statements  set  forth 
therein,  in  Nos.  1 to  4,  concerning  the  acquisition  of  real  rights  in  landed  prop- 
erty, the  construction  of  warehouses,  the  freedom  from  taxation  in  the  foreign 
settlements,  and  the  preservation  of  duly-acquired  rights  after  the  expiration 
of  the  treaty.  . , , ,,  , , , 

^Translation  : When  the  changes  above  indicated  shall  have  taken  place 

[ ],  the  leases  in  perpetuity,  in  virtue  of  which  foreigners  now 

possess  property  in  the  settlements,  shall  be  confirmed,  and  property  of  that 
character  shall  not  be  subject  to  any  duties,  taxes,  charges,  contributions  or 
conditions  whatsoever,  other  than  those  expressly  stipulated  in  the  leases  in 
question. 


THE  JAPANESE  HOUSE  TAX  CASE 


87 


have  resolved  to  terminate  the  controversy  by  referring  the  question 
at  issue  to  impartial  arbitration  in  accordance  with  the  provisions  of 
said  convention; 

The  said  Powers  have,  with  a view  to  carry  out  that  resolution, 
authorized  the  following  representatives,  that  is  to  say : 

The  Government  of  Great  Britain:  Sir  Qaude  Maxwell  MacDon- 
ald, G.  C.  M.  G.,  K.  C.  B.,  His  Britannic  Majesty’s  Envoy  Extraor- 
dinary and  Minister  Plenipotentiary; 

The  Government  of  France:  Monsieur  G.  Dubail,  Minister  Pleni- 
potentiary, Charge  d’Affaires  of  France; 

The  Government  of  Germany:  Count  von  Arco  Valley,  Envoy  Ex- 
traordinary and  Minister  Plenipotentiary  of  His  Majesty  the  German 
Emperor,  King  of  Prussia; 

The  Government  of  Japan:  Baron  Komura  Jutaro,  His  Imperial 

Japanese  Majesty’s  Minister  of  State  for  Foreign  Affairs ; to  conclude 
the  following  protocol : 

1 

The  Powers  in  difference  agree  that  the  arbitral  tribunal,  to  which 
the  question  at  issue  is  to  be  submitted  for  final  decision,  shall  be  com- 
posed of  three  members  who  are  members  of  the  Permanent  Court  of 
Arbitration  of  The  Hague,  to  be  selected  in  the  following  manner: 

Each  party,  as  soon  as  possible  and  not  later  than  two  months  after 
the  date  of  this  protocol,  to  name  one  arbitrator,  and  the  two  arbi- 
trators so  named  together  to  choose  an  umpire.  In  case  the  two  arbi- 
trators fail  for  the  period  of  two  months  after  their  appointment  to 
choose  an  umpire,  His  Majesty  the  King  of  Sweden  and  Norway  shall 
be  requested  to  name  an  umpire. 


2 

The  question  at  issue  upon  which  the  parties  to  this  arbitration 
request  the  arbitral  tribunal  to  pronounce  a final  decision,  is  as 
follows : 

Whether  or  not  the  provisions  of  the  treaties  and  other  engagements 
above  quoted  exempt  only  land  held  under  leases  in  perpetuity  granted 
by  or  on  behalf  of  the  Japanese  Government,  or  land  and  buildings  of 
whatever  description  constructed  or  which  may  hereafter  be  con- 
structed on  such  land,  from  any  imposts,  taxes,  charges,  contributions, 
or  conditions  whatsoever,  other  than  those  expressly  stipulated  in  the 
leases  in  question. 


88 


THE  HAGUE  COURT  REPORTS 


3 

Within  eight  months  after  the  date  of  this  protocol,  each  party 
shall  deliver  to  the  several  members  of  the  arbitral  tribunal  and  to 
the  other  party  complete  written  or  printed  copies  of  the  case,  evidence 
. and  arguments  upon  which  it  relies  in  the  present  arbitration.  And 
1 not  later  than  six  months  thereafter  a similar  delivery  shall  be  made 
\ of  written  or  printed  copies  of  the  counter-cases,  additional  evidence, 
^and  final  arguments  of  the  two  parties ; it  being  understood  that  such 
icounter-cases,  additional  evidence  and  final  arguments,  shall  be  lim- 
Ifted  to  answering  the  principal  cases,  evidence,  and  arguments  pre- 
(Viously  delivered. 

4 

Each  party  shall  have  the  right  to  submit  to  the  arbitral  tribunal  as 
evidence  in  the  case  all  such  documents,  records,  official  correspon- 
dence, and  other  official  or  public  statements  or  acts  bearing  on  the 
subject  of  this  arbitration  as  it  may  consider  necessary.  But  if  in  its 
case,  counter-case,  or  arguments  submitted  to  the  tribunal  either  party 
shall  have  specified  or  alluded  to  any  document  or  paper  in  its  o^vn 
exclusive  possession  without  annexing  a copy,  such  party  shall  be 
bound,  if  the  other  party  thinks  proper  to  apply  for  it,  to  furnish  that 
party  with  a copy  thereof  within  thirty  days  after  such  application  is 
made. 

5 

Either  party  may,  if  it  thinks  fit,  but  subject  to  the  right  of  reply 
on  the  part  of  the  other  party  within  such  time  as  may  be  fixed  by  the 
arbitral  tribunal,  present  to  the  tribunal  for  such  action  as  the  tribunal 
may  deem  proper  a statement  of  objections  to  the  counter-case,  addi- 
tional evidence,  and  final  arguments  of  the  other  party  if  it  is  of  opinion 
that  those  documents  or  any  of  them  are  irrelevant,  erroneous,  or  not 
strictly  limited  to  answering  its  principal  case,  evidence,  and  argu- 
ments. 

6 

No  papers  or  communications  other  than  those  contemplated  by  sec- 
tions 3 and  5 of  this  protocol,  either  written  or  oral,  shall  be  admitted 
or  considered  in  the  present  arbitration  unless  the  arbitral  tribunal  shall 
request  from  either  party  additional  or  supplementary  explanation  or 
information  to  be  given  in  writing.  If  the  explanation  or  information 
is  given,  the  other  party  shall  have  the  right  to  present  a written  reply 
within  such  time  as  may  be  fixed  by  the  arbitral  tribunal. 


THE  JAPANESE  HOUSE  TAX  CASE 


89 


7 

The  tribunal  shall  meet  at  a place  to  be  designated  later  by  the 
parties  as  soon  as  practicable,  but  not  earlier  than  two  months  nor 
later  than  three  months  after  the  delivery  of  the  counter-cases  as  pro- 
vided in  section  3 of  this  protocol,  and  shall  proceed  impartially  and 
carefully  to  examine  and  decide  the  question  at  issue.  The  decision  of 
the  tribunal  shall,  if  possible,  be  pronounced  within  one  month  after 
the  president  thereof  shall  have  declared  the  arbitral  hearing  dosed. 

8 

For  the  purposes  of  this  arbitration,  the  Government  of  Japan  shall 
be  regarded  as  one  party  and  the  Governments  of  Great  Britain, 
France,  and  Germany,  jointly,  shall  be  regarded  as  the  other  party. 

9 

So  far  as  is  not  otherwise  provided  in  this  protocol,  the  provisions 
of  the  Convention  of  The  Hague  for  the  peaceful  adjustment  of  inter- 
national differences  shall  apply  to  this  arbitration. 

Done  at  Tokio,  this  28th  day  of  August,  1902,  corresponding  to  the 
28th  day  of  the  8th  month  of  the  35th  year  of  Meiji. 

(Signed)  Claude  M.  MacDonald 
(Signed)  Jutaro  Komura 


ADDITIONAL  DOCUMENTS 

Extract  from  the  Treaty  of  Commerce  and  Navigation  between  Great 
Britain  and  Japan,  signed  at  London,  July  i6,  i8g/f- 

18.  Her  Britannic  Majesty’s  Government,  so  far  as  they  are  con- 
cerned, give  their  consent  to  the  following  arrangement: 

The  several  foreign  settlements  in  Japan  shall  be  incorporated  with 
the  respective  Japanese  communes,  and  shall  thenceforth  form  part  of 
the  general  municipal  system  of  Japan. 

The  competent  Japanese  authorities  shall  thereupon  assume  all 
municipal  obligations  and  duties  in  respect  thereof,  and  the  common 
funds  and  property,  if  any,  belonging  to  such  settlements,  shall  at  the 
same  time  be  transferred  to  the  said  Japanese  authorities. 

When  such  incorporation  takes  place  the  existing  leases  in  perpetuity 
under  which  property  is  now  held  in  the  said  settlements  shall  be  con- 
firmed, and  no  conditions  whatsoever  other  than  those  contained  in 


^British  and  Foreign  State  Papers,  vol.  86,  p.  46. 


90 


THE  HAGUE  COURT  REPORTS 


such  existing  leases  shall  be  imposed  in  respect  of  such  property.  It 
is,  however,  understood  that  the  consular  authorities  mentioned  in  the 
same  are  in  all  cases  to  be  replaced  by  the  Japanese  authorities. 

All  lands  which  may  previously  have  been  granted  by  the  Japanese 
Government  free  of  rent  for  the  public  purposes  of  the  said  settle- 
ments shall,  subject  to  the  right  of  eminent  domain,  be  permanently 
reserved  free  of  all  taxes  and  charges  for  the  public  purposes  for 
which  they  were  originally  set  apart. 

19.  The  stipulations  of  the  present  treaty  shall  be  applicable,  so  far 
as  the  laws  permit,  to  all  the  colonies  and  foreign  possessions  of  Her 
Britannic  Majesty,  excepting  to  those  hereinafter-named,  that  is  to 
say,  except  to — 


India 

The  Dominion  of  Canada 

Newfoundland 

The  Cape 

Natal 

New  South  Wales 


Victoria 
Queensland 
Tasmania 
South  Australia 
Western  Australia 
New  Zealand 


Provided  always  that  the  stipulations  of  the  present  treaty  shall  be 
made  applicable  to  any  of  the  above-named  colonies  or  foreign  posses- 
sions on  whose  behalf  notice  to  that  effect  shall  have  been  given  to 
the  Japanese  Government  by  Her  Britannic  Majesty’s  representative 
at  Tokio  within  two  years  from  the  date  of  the  exchange  of  ratifica- 
tions of  the  present  treaty. 

20.  The  present  treaty  shall,  from  the  date  it  comes  into  force,  be 
substituted  in  place  of  the  conventions  respectively  of  the  23d  day 
of  the  8th  month  of  the  7th  year  of  Kayei,  corresponding  to  the  14th 
day  of  October,  1854,  and  of  the  13th  day  of  the  5th  month  of  the 
2nd  year  of  Keiou,  corresponding  to  the  25th  day  of  June,  1866,  the 
treaty  of  the  18th  day  of  the  7th  month  of  the  5th  year  of  Ansei,  cor- 
responding to  the  26th  day  of  August,  1858,  and  all  arrangements  and 
agreements  subsidiary  thereto  concluded  or  existing  between  the  high 
contracting  Parties ; and  from  the  same  date  such  conventions,  treaty, 
arrangements,  and  agreements  shall  cease  to  be  binding,  and,  in  con- 
sequence, the  jurisdiction  then  exercised  by  British  courts  in  Japan, 
and  all  the  exceptional  privileges,  exemptions,  and  immunities  then 
enjoyed  by  British  subjects  as  a part  of  or  appurtenant  to  such  juris- 
diction, shall  absolutely  and  without  notice  cease  and  determine,  and 
thereafter  all  such  jurisdiction  shall  be  assumed  and  exercised  by 
Japanese  courts. 


THE  JAPANESE  HOUSE  TAX  CASE 


91 


Extract  from  the  Treaty  of  Commerce  and  N avigation  between  Ger- 
many and  Japan,  signed  at  Berlin,  April  4,  i8g6  ^ 

18.  The  contracting  Parties  have  agreed  upon  the  following  ar- 
rangement ; 

The  several  foreign  settlements  in  Japan  shall  be  incorporated  with 
the  respective  Japanese  communes,  and  shall  thenceforth  form  integral 
parts  of  the  Japanese  communes. 

The  competent  Japanese  authorities  shall  thereupon  assume  all 
municipal  obligations  and  duties  in  respect  thereof,  and  the  common 
funds  and  property,  if  any,  belonging  to  such  settlements,  shall  at  the 
same  time  be  transferred  to  the  said  Japanese  authorities. 

When  such  incorporation  takes  place  the  existing  leases  in  perpetuity 
under  which  property  is  now  held  in  the  said  settlements  shall  be  con- 
firmed, and  no  conditions  whatsoever  other  than  those  contained  in 
such  existing  leases  shall  be  imposed  in  respect  of  such  property. 

The  proprietary  rights  in  the  lands  belonging  to  these  settlements 
may  in  the  future  be  granted  to  natives  or  foreigners  by  their  pro- 
prietors free  of  charge  and  without  the  consent  of  the  consular  or 
Japanese  authorities,  as  has  hitherto  been  required  in  certain  cases. 

The  functions,  however,  attached  according  to  the  original  leases 
to  the  consular  authorities,  shall  devolve  upon  the  Japanese  author- 
ities. 

All  lands  which  may  previously  have  been  granted  by  the  Japanese 
Government  free  of  rent  for  the  public  purposes  of  the  said  settle- 
ments shall,  subject  to  the  right  of  eminent  domain,  be  permanently 
reserved  free  of  all  taxes  and  charges  for  the  public  purposes  for 
which  they  were  originally  set  apart. 

19.  The  stipulations  of  the  present  treaty  shall  be  applicable  to  the 
territories  which  now,  or  shall  in  future,  form  a customs  union  with 
one  or  other  of  the  contracting  Parties. 

, 20.  The  present  treaty  shall,  from  the  date  it  comes  into  force,  be 

substituted  in  place  of  the  treaty  of  the  20th  February,  1869,  and  all 
arrangements  and  agreements  subsidiary  thereto  concluded  or  exist- 
ing between  the  high  contracting  Parties.  From  the  same  date  these 
earlier  conventions  shall  cease  to  be  binding,  and,  in  consequence,  the 
jurisdiction  till  then  exercised  by  German  courts  in  Japan,  and  all  the 
exceptional  privileges,  exemptions,  and  immunities  then  enjoyed  by 
German  subjects  as  a part  of  or  appurtenant  to  such  jurisdiction,  shall 
absolutely  and  without  notice  cease  and  determine.  Thereafter  all  such 
jurisdiction  shall  be  assumed  and  exercised  by  Japanese  courts. 

'^British,  and  Foreign  State  Papers,  vol.  88,  p.  588.  For  the  original  German 
text,  see  Appendix,  p.  464. 


92 


THE  HAGUE  COURT  REPORTS 


Extract  from  the  Treaty  of  Commerce  and  Navigation  between  France 
and  Japan,  signed  at  Paris,  August  4,  i8p6^ 

21.  The  Government  of  the  French  Republic,  so  far  as  it  is  con- 
cerned, gives  its  consent  to  the  following  arrangement: 

The  several  foreign  settlements  existing  in  Japan  shall  be  incor- 
porated in  the  respective  Japanese  communes  and  shall  thenceforth 
form  a part  of  the  municipal  system  of  Japan. 

The  competent  Japanese  authorities  shall  thereupon  assume  all 
municipal  obligations  and  powers  resulting  from  this  new  state  of 
affairs,  and  the  municipal  funds  and  property  belonging  to  such 
settlements  shall,  at  the  same  time,  be  transferred  to  the  said  Japanese 
authorities. 

When  the  changes  above  indicated  shall  have  taken  place,  the  leases 
in  perpetuity,  in  virtue  of  which  foreigners  now  possess  property  in 
the  settlements,  shall  be  confirmed,  and  property  of  that  character  shall 
not  be  subject  to  any  duties,  taxes,  charges,  contributions,  or  condi- 
tions whatsoever,  other  than  those  expressly  stipulated  in  the  leases  in 
question.  It  is  understood,  however,  that  the  consular  authorities  men- 
tioned in  the  same  shall  be  replaced  by  Japanese  authorities. 

Those  lands  which  the  Japanese  Government  may  have  previously 
exempted  from  the  payment  of  rent,  in  view  of  the  fact  that  they  were 
used  for  public  purposes,  shall,  subject  to  the  right  of  eminent  domain, 
be  permanently  reserved  free  of  all  duties,  taxes,  and  charges ; and 
they  shall  never  be  diverted  to  other  uses  than  those  for  which  they 
were  originally  intended. 

22.  The  provisions  of  the  present  treaty  shall  be  applicable  to  Al- 
geria. It  is  understood  that  they  shall  also  be  applicable  to  all  French 
colonies  for  which  the  French  Government  shall  claim  the  privilege. 
The  representative  of  the  French  Republic  at  Tokio  shall,  to  this  end, 
notify  the  Japanese  Government  of  such  colonies  within  a period  of 
ten  days,  dating  from  the  day  of  the  exchange  of  ratifications  of  the 
present  treaty. 

23.  From  the  date  that  the  present  treaty  becomes  operative,  the 
treaty  of  October  9,  1858,  the  convention  of  June  25,  1866,  and,  in 
general,  all  the  agreements  concluded  between  the  high  contracting 
Parties  prior  to  this  date  shall  be  abrogated.  In  consequence,  French 
jurisdiction  in  Japan,  and  all  privileges,  exemptions  or  immunities  en- 
joyed by  French  subjects  resulting  therefrom,  shall  cease  absolutely 
and  without  notice  from  the  day  that  the  present  treaty  becomes  op- 
erative; and  thereafter  French  subjects  shall  submit  to  the  jurisdiction 
of  the  Japanese  tribunals. 


^Translation.  For  the  original  French  text,  see  Appendix,  p.  465. 


THE  MUSCAT  DHOWS  CASE 

between 

FRANCE  and  GREAT  BRITAIN 
Decided  August  8,  1905 
Syllabus 

In  an  adjustment  of  conflicting  interests,  Great  Britain  and  France, 
on  March  10,  1862,^  signed  a declaration  in  which  they  engaged  recip- 
rocally to  respect  the  independence  of  the  Sultan  of  Muscat.  Subse- 
quently, France,  acting  under  the  treaty  of  November  17,  1844,^  with 
the  Sultan,  adopted  the  practice  of  issuing  to  certain  of  his  subjects 
papers  authorizing  them  to  fly  the  French  flag  upon  dhows  or  vessels 
carrying  on  the  coastwise  trade  in  the  Indian  Ocean,  the  Red  Sea, 
and  the  Persian  Gulf  and  also  commonly  employed  in  the  slave  trade 
from  the  east  coast  of  Africa.  After  the  signature,  on  July  2,  1890, 
of  the  General  Act  of  Brussels®  for  the  repression  of  the  African  slave 
trade.  Great  Britain  protested  that  the  issuance  of  such  authorizations 
to  natives  and  the  privileges  and  immunities  claimed  by  them  there- 
under affected  the  jurisdiction  of  the  Sultan  over  his  subjects  in  dero- 
gation of  the  engagements  entered  into  by  France  and  Great  Britain 
in  the  declaration  of  1862.  Failing  a settlement  through  diplomatic 
channels,  the  question  was  referred  by  a compromis  signed  October  13, 
1904,^  to  a tribunal  consisting  of  Heinrich  Lammasch  of  Austria,  A.  F. 
de  Savomin  Lohman  of  Holland,  and  Chief  Justice  Melville  W. 
Fuller  of  the  United  States.  The  sessions  began  July  25,  1905,  and 
ended  August  2,  1905,  the  decision  being  rendered  on  August  8,  1905. 

The  tribunal  decided  that: 

( 1 ) Every  sovereign  may  decide  to  whom  it  will  accord  the  right 
to  fly  its  flag  and  to  prescribe  the  rules  governing  its  use,  and  the 
granting  of  the  right  to  subjects  of  another  sovereign  constitutes  no 
attack  upon  the  latter’s  independence. 

(2)  This  right  of  France  was,  however,  limited  by  Article  32  of 
the  General  Act  of  Brussels,  which  went  into  effect  on  January  2, 
1892,  under  which  both  France  and  Great  Britain  as  signatories  agreed 
to  grant  authority  to  fly  their  flags  only  to  native  vessels  owned  or 
fitted  out  by  their  subjects  or  proteges.  The  latter  term  was  defined  to 
mean  the  subjects  of  a protectorate  of  the  Power  in  question;  the  indi- 
viduals enumerated  in  the  Ottoman  law  of  1863,  which  was  accepted 
by  the  Powers  who  enjoy  the  capitulations,  and  in  the  treaty  between 
France  and  Morocco  of  the  same  year,  acceded  to  by  other  Powers 

^Post,  p.  103.  ^Post,  p.  103. 

®For  Articles  30  et  seq.  of  this  Act,  see  post,  p.  104. 

*Post,  p.  101. 


94 


THE  HAGUE  COURT  REPORTS 


ami  confirmed  by  the  convention  of  Madrid,  of  1880;  persons  recog- 
nized as  proteges  by  special  treaties;  and  individuals  who  were  con- 
sidered and  treated  as  proteges  by  the  Power  in  question  before  the 
creation  of  new  proteges  was  regulated  and  limited  in  1863. 

(3)  The  restriction  on  the  creation  of  proteges  in  Turkey  and  Mo- 
rocco applies  by  analogy  to  other  Oriental  States,  but,  owing  to  the 
difference  in  racial  conditions  in  Turkey  and  Muscat,  the  right  of  in- 
heritance of  the  status  of  protege  conceded  by  Turkey  can  not  be 
extended  by  analogy  to  Muscat. 

(4)  The  French-Muscat  treaty  of  1844,  specially  recognizing  cer- 
tain persons  as  French  proteges,  applies  only  to  persons  bona  fide  in 
the  service  of  French  subjects,  and  not  to  persons  who  ask  for  ship’s 
papers  simply  for  the  purpose  of  carrying  on  commerce  under  the 
French  flag;  but  the  granting  of  such  papers  prior  to  the  ratification 
of  the  Act  of  Brussels  was  not  in  violation  of  any  international  obliga- 
tion of  France. 

Held:  That  before  January  2,  1892,  France  was  entitled  to  author- 
ize vessels  belonging  to  the  subjects  of  Muscat  to  fly  the  French  flag, 
and  that  such  grantees  are  entitled  to  retain  their  authorizations  as  long 
as  France  renews  them ; but,  after  the  above-mentioned  date,  France 
was  not  entitled  to  grant  such  authorizations  except  when  the  owners 
or  fitters-out  of  the  vessels  had  established  or  could  establish  the  fact 
that  they  were  considered  and  treated  as  French  proteges  before  1863. 

Concerning  the  privileges  and  immunities  of  natives  in  possession  of 
such  papers,  the  tribunal  decided  that  the  treaty  between  France  and 
Muscat  of  1844  prohibiting  without  the  authorization  of  the  French 
consul  the  entry  or  search  of  houses,  warehouses  and  other  property 
possessed  or  occupied  by  French  citizens  or  persons  in  their  employ, 
was  comprehensive  enough  to  include  the  prohibition  of  the  entry  of 
vessels,  but  Articles  31-41  of  the  General  Act  of  Brussels  limits  the 
grant  of  the  right  to  fly  the  national  flag  to  that  particular  vessel  and 
its  owner,  and  the  right  is  not  transferrable  to  any  other  person  or 
vessel. 

The  provision  of  the  treaty  of  1844,  which  accords  French  protec- 
tion to  persons  in  the  employ  of  French  citizens,  does  not  include  the 
owners,  masters  and  crews  of  dhows  authorized  to  fly  the  French  flag 
or  the  members  of  their  families,  and  the  withdrawal  of  these  persons 
from  the  sovereignty  and  jurisdiction  of  the  Sultan  would  be  a viola- 
tion of  the  declaration  of  1862. 

Held:  That  dhows  of  Muscat  authorized,  as  aforesaid,  to  fly  the 
French  flag  are  entitled  in  the  territorial  waters  of  Muscat  to  the  in- 
violability provided  by  the  French-Muscat  treaty  of  1844,  but  the  right 
can  not  be  transmitted  to  any  other  person  or  dhow,  and  the  owners, 
masters,  and  crews  of  such  dhows  or  members  of  their  families  do 
not  enjoy  any  right  of  extraterritoriality  which  exempts  them  from 
the  jurisdiction  of  the  Sultan  of  Muscat. 


THE  MUSCAT  DHOWS  CASE 


95 


AWARD  OF  THE  TRIBUNAL 

Award  of  the  arbitration  tribunal  appointed  to  decide  on  the  ques- 
tion of  the  grant  of  the  French  dag  to  Muscat  dhows. — The 
Hague,  August  8,  1905.^ 

The  tribunal  of  arbitration  constituted  in  virtue  of  the  compro- 
mis  concluded  at  London  on  October  13,  1904,*  between  Great 
Britain  and  France; 

Whereas  the  Government  of  His  Britannic  Majesty  and  that  of 
the  French  Republic  have  thought  it  right  by  the  declaration  of 
March  10,  1862,*  “to  engage  reciprocally  to  respect  the  indepen- 
dence” of  His  Highness  the  Sultan  of  Muscat ; 

Whereas  difficulties  as  to  the  scope  of  that  declaration  have 
arisen  in  relation  to  the  issue,  by  the  French  Republic,  to  certain 
subjects  of  His  Highness  the  Sultan  of  Muscat  of  papers  authoriz- 
ing them  to  fly  the  French  flag,  and  also  as  to  the  nature  of  the 
privileges  and  immunities  claimed  by  subjects  of  His  Highness  who 
are  owners  or  masters  of  dhows  and  in  possession  of  such  papers 
or  are  members  of  the  crew  of  such  dhows  and  their  families, 
especially  as  to  the  manner  in  which  such  privileges  and  immunities 
affect  the  jurisdiction  of  His  Highness  the  Sultan  over  his  said 
subjects; 

Whereas  the  two  Governments  have  agreed  by  the  compromis  of 
October  13,  1904,  that  these  questions  shall  be  determined  by  ref- 
erence to  arbitration,  in  accordance  with  the  provisions  of  Article  1 
of  the  convention  concluded  between  the  two  Powers  on  the  14th 
of  October,  1903  ;* 

Whereas  in  virtue  of  that  compromis  were  named  as  arbitrators, 
by  the  Government  of  His  Britannic  Majesty: 

Mr.  Melville  W.  Fuller,  Chief  Justice  of  the  United  States  of 
America,  and 

by  the  Government  of  the  French  Republic : 

Jonkheer  A.  F.  de  Savornin  Lohman,  Doctor  of  Law,  former 
Minister  of  the  Interior  of  the  Netherlands,  former  professor  at  the 

^Official  report,  p.  69.  For  the  original  French  text,  see  Appendix,  p.  467. 
^Post,  p.  101.  ^Post,  p.  103.  •‘A  treaty  of  general  arbitration. 


96 


THE  HAGUE  COURT  REPORTS 


free  University  at  Amsterdam,  member  of  the  Second  Chamber  of 
the  States-General ; 

Whereas  the  two  arbitrators  not  having  agreed  within  one  month 
from  the  date  of  their  appointment  in  the  choice  of  an  umpire,  and 
that  choice  having  then  been  entrusted,  in  virtue  of  Article  1 of  the 
compromis,  to  the  King  of  Italy,  His  Majesty  has  named  umpire: 

Mr.  H.  Lammasch,  Doctor  of  Law,  professor  at  the  University 
at  Vienna,  member  of  the  Upper  House  of  the  Austrian  Parlia- 
ment; 

Whereas  the  cases,  counter-cases  and  arguments  have  been  duly 
communicated  to  the  tribunal  and  to  the  parties ; 

Whereas  the  tribunal  has  carefully  examined  these  documents, 
and  the  supplementary  observations  which  were  delivered  to  it  by 
the  two  parties; 

As  to  the  first  question: 

Whereas  generally  speaking  it  belongs  to  every  sovereign  to  de- 
cide to  whom  he  will  accord  the  right  to  fly  his  flag  and  to  prescribe 
the  rules  governing  such  grants,  and  whereas,  therefore,  the  grant- 
ing of  the  French  flag  to  subjects  of  His  Higlmess  the  Sultan  of 
Muscat  in  itself  constitutes  no  attack  on  the  independence  of  the 
Sultan ; 

Whereas  nevertheless  a sovereign  may  be  limited  by  treaties  in 
the  exercise  of  this  right,  and  whereas  the  tribunal  is  authorized  in 
virtue  of  Article  48  of  the  Convention  for  the  pacific  settlement  of 
international  disputes  of  July  29,  1899,  and  of  Article  5 of  the 
compromis  of  October  13,  1904,  “to  declare  its  competence  in  inter- 
preting the  compromis  as  well  as  the  other  treaties  which  may  be 
invoked  in  the  case,  and  in  applying  the  principles  of  international 
law,”  and  whereas  therefore  the  question  arises,  under  what  condi- 
tions Powers  which  have  acceded  to  the  General  Act  of  the  Brussels 
Conference  of  July  2,  1890,^  relative  to  the  African  slave  trade, 
especially  to  Article  32  of  this  Act,  are  entitled  to  authorize  native 
vessels  to  fly  their  flags ; 

Whereas  by  Article  32  of  this  Act  the  faculty  of  the  signatory 
Powers  to  grant  their  flag  to  native  vessels  has  been  limited  for  the 
purpose  of  suppressing  slave  trading  and  in  the  general  interests  of 
humanity,  irrespective  of  whether  the  applicant  for  the  flag  may 


^For  Articles  30  ct  seq.  of  this  Act,  see  post,  p.  104. 


THE  MUSCAT  DHOWS  CASE 


97 


belong  to  a State  signatory  of  this  Act  or  not,  and  whereas  at  any 
*^rate  France  is  in  relation  to  Great  Britain  bound  to  grant  her  flag 
only  under  the  conditions  prescribed  by  this  Act; 

Whereas  in  order  to  attain  the  above-mentioned  purpose,  the  sig- 
natory Powers  of  the  Brussels  Act  have  agreed  in  its  Article  32 
that  the  authority  to  fly  the  flag  of  one  of  the  signatory  Powers  shall 
in  future  only  be  granted  to  such  native  vessels  which  shall  satisfy 
all  the  three  following  conditions: 

1.  Their  fitters-out  or  owners  must  be  either  subjects  of  or  per- 
sons protected  by  the  Power  whose  flag  they  claim  to  fly ; 

2.  They  must  furnish  proof  that  they  possess  real  estate  situated 
in  the  district  of  the  authority  to  whom  their  application  is  ad- 
dressed, or  supply  a solvent  security  as  a guaranty  for  any  fines  to 
which  they  may  eventually  become  liable ; 

3.  Such  fitters-out  or  owners,  as  well  as  the  captain  of  the  vessel, 
must  furnish  proof  that  they  enjoy  a good  reputation,  and  especially 
that  they  have  never  been  condemned  for  acts  of  slave  trade ; 

Whereas  in  default  of  a definition  of  the  term  protege  in  the  Gen- 
eral Act  of  the  Brussels  Conference  this  term  must  be  understood 
in  the  sense  which  corresponds  best  as  well  to  the  elevated  aims  of 
the  conference  and  its  final  Act  as  to  the  principles  of  the  law  of 
nations,  as  they  have  been  expressed  in  treaties  existing  at  that  time, 
in  internationally  recognized  legislation  and  in  international  prac- 
tice; 

Whereas  the  aim  of  the  said  Article  32  is  to  admit  to  navigation 
in  the  seas  infested  by  slave  trade  only  those  native  vessels  which 
are  under  the  strictest  surveillance  of  the  signatory  Powers,  a con- 
dition which  can  only  be  secured  if  the  owners,  fitters-out,  and  crews 
of  such  vessels  are  exclusively  subjected  to  the  sovereignty  and  juris- 
diction of  the  State  under  whose  flag  they  are  sailing; 

Whereas,  since  the  restriction  which  the  term  protege  underwent 
in  virtue  of  the  legislation  of  the  Ottoman  Porte  of  1863,  1865,  and 
1869,  especially  of  the  Ottoman  law  of  23  Sefer,  1280  (August, 
1863),  implicitly  accepted  by  the  Powers  who  enjoy  the  rights  of 
capitulations,  and  since  the  treaty  concluded  between  France  and 
Morocco  in  1863,^  to  which  a great  number  of  other  Powers  have 


^An  agreement  of  August  19,  1863,  relative  to  the  French  right  of  protection 
in  Morocco. 


98 


THE  HAGUE  COURT  REPORTS 


acceded  and  which  received  the  sanction  of  the  convention  of  Madrid 
of  July  30,  1880,^  the  term  protege  embraces  in  relation  to  states 
of  capitulations  only  the  following  classes : first,  persons  being 
subjects  of  a country  which  is  under  the  protectorate  of  the  Power 
whose  protection  they  claim ; secondly,  individuals  correspond- 
ing to  the  classes  enumerated  in  the  treaties  with  Morocco  of  1863 
and  1880  and  in  the  Ottoman  law  of  1863;  thirdly,  persons  who 
under  a spedial  treaty  have  been  recognized  as  proteges  like  those 
enumerated  by  Article  4 of  the  French-Muscat  convention  of  1844,* 
and,  fourthly,  those  individuals  who  can  establish  that  they  had  been 
considered  and  treated  as  proteges  by  the  Power  in  question  before 
the  year  in  which  the  creation  of  new  proteges  was  regulated  and 
limited,  that  is  to  say,  before  the  year  1863,  these  individuals  not 
having  lost  the  status  they  had  once  legitimately  acquired. 

Whereas  that,  although  the  Powers  have  expressis  verbis  resigned 
the  exercise  of  the  pretended  right  to  create  proteges  in  unlimited 
number  only  in  relation  to  Turkey  and  Morocco,  nevertheless  the 
exercise  of  this  pretended  right  has  been  abandoned  also  in  relation 
to  other  Oriental  States,  analogy  having  always  been  recognized  as 
a means  to  complete  the  very  deficient  written  regulations  of  the 
capitulations  as  far  as  circumstances  are  anndogous; 

Whereas,  on  the  other  hand,  the  conceosion  de  facto  made  by 
Turkey,  that  the  status  of  proteges  be  tr  nsmitted  to  the  descendants 
of  persons  who  in  1863  had  enjoyed  < it  protection  of  a Christian 
Power  can  not  be  extended  by  rnalo^y  to  Muscat,  where  the  cir- 
cumstances are  entirely  dissimilar,  the  proteges  of  the  Christian 
Powers  in  Turkey  being  of  race,  nationality,  and  religion  different 
from  their  Ottoman  rulers,  whilst  the  inhabitants  of  Sur  and  other 
Muscat  people  who  might  apply  for  French  flags  are  in  all  these 
respects  entirely  in  the  same  condition  as  the  other  subjects  of  the 
Sultan  of  Muscat ; 

Whereas  the  dispositions  of  Article  4 of  the  French-Muscat 
treaty  of  1844  apply  only  to  persons  who  are  bona  fide  in  the  service 
of  French  subjects,  but  not  to  persons  who  ask  for  ship’s  papers 
for  the  purpose  of  doing  any  commercial  business; 

^An  agreement  between  France,  Great  Britain,  Morocco  et  al.  for  the  settle- 
ment of  the  right  of  protection  in  Morocco. 

*Post,  p.  103. 


THE  MUSCAT  DHOWS  CASE 


99 


Whereas  the  fact  of  having  granted  before  the  ratification  of  the 
Brussels  Act  on  January  2,  1892,  authorizations  to  fly  the  French 
flag  to  native  vessels  not  satisfying  the  conditions  prescribed  by 
Article  32  of  this  Act  was  not  in  contradiction  with  any  international 
obligation  to  France: 

For  these  reasons  decides  and  pronounces  as  follows: 

1.  Before  the  2d  of  January,  1892,  France  was  entitled  to  author- 
ize vessels  belonging  to  subjects  of  His  Highness  the  Sultan  of 
Muscat  to  fly  the  French  flag,  only  bound  by  her  own  legislation 
and  administrative  rules; 

2.  Owners  of  dhows,  who  before  1892  have  been  authorized  by 
France  to  fly  the  French  flag,  retain  this  authorization  as  long  as 
P'rance  renews  it  to  the  grantee; 

3.  After  January  2,  1892,  France  was  not  entitled  to  authorize 
vessels  belonging  to  subjects  of  His  Highness  the  Sultan  of  Muscat 
to  fly  the  French  flag,  except  on  condition  that  their  owners  or 
fitters-out  had  established  or  should  establish  that  they  had  been 
considered  and  treated  by  France  as  her  proteges  before  the  year 
1863. 

As  to  the  second  question: 

Whereas  the  legal  situation  of  vessels  flying  foreign  flags  and  of 
the  owners  of  such  vessels  in  the  territorial  waters  of  an  oriental 
State  is  determined  by  the  general  principles  of  jurisdiction,  by  the 
capitulations  or  other  treaties  and  by  the  practice  resulting  there- 
from ; 

Whereas  the  terms  of  the  treaty  of  friendship  and  commerce  be- 
tween France  and  the  Iman  of  Muscat  of  November  17,  1844,  are 
particularly  in  view  of  the  language  of  Article  3,  “Nul  ne  pourra, 
sousaucun  pretexte,  penetrer  dans  les  maisons,  magasins  et  autres 
proprietes,  possedes  ou  occupes  par  des  Frangais  ou  par  des  per- 
sonnes  an  service  des  Frangais,  ni  les  visiter  sans  le  consentement  de 
Voccupant  a moins  que  ce  ne  soit  avec  I’ intervention  du  Consul  de 
France,”  comprehensive  enough  to  embrace  vessels  as  well  as  other 
property ; 

Whereas,  although  it  can  not  be  denied  that  by  admitting  the 

^Translation  : No  person  shall,  under  any  pretext  whatsoever,  penetrate  or 
search  the  houses,  warehouses  or  other  property  possessed  or  occupied  by  French 
citizens  or  by  persons  in  the  employ  of  French  citizens,  without  the  consent 
of  the  occupant,  unless  authorized  by  the  French  Consul. 


100 


THE  HAGUE  COURT  REPORTS 


right  of  France  to  g^ant  under  certain  circumstances  her  flag  to 
native  vessels  and  to  have  these  vessels  exempted  from  visitation 
by  the  authorities  of  the  Sultan  or  in  his  name,  slave  trade  is  facili- 
tated, because  slave  traders  may  easily  abuse  the  French  flag  for 
the  purpose  of  escaping  from  search,  the  possibility  of  this  abuse, 
which  can  be  entirely  suppressed  by  the  accession  of  all  Powers  to 
Article  42  of  the  Brussels  convention,  can  not  affect  the  decision 
of  this  case,  which  must  only  rest  on  juridical  grounds; 

Whereas,  according  to  the  Articles  31-41  of  the  Brussels  Act,  the 
grant  of  the  flag  to  a native  vessel  is  strictly  limited  to  this  vessel 
and  its  owner  and  [ij]  therefore  not  transmissible  or  transferable  to 
any  other  person  or  to  any  other  vessel,  even  if  belonging  to  the 
same  owner; 

Whereas  Article  4 of  the  French-Muscat  treaty  of  1844  grants  to 
those  subjects  of  His  Highness  the  Sultan  of  Muscat  *‘qui  seront  au 
service  des  Frangais  [who  are  in  the  employ  of  French  citizensY’  the 
same  protection  as  to  the  French  themselves,  but  whereas  the  own- 
ers, masters,  and  crews  of  dhows  authorized  to  fly  the  French  flag 
do  not  belong  to  that  class  of  persons  and  still  less  do  the  members 
of  their  families; 

Whereas  the  withdrawal  of  these  persons  from  the  sovereignty, 
especially  from  the  jurisdiction  of  His  Highness  the  Sultan  of 
Muscat,  would  be  in  contradiction  with  the  declaration  of  March 
10,  1862,  by  which  France  and  Great  Britain  engaged  themselves 
reciprocally  to  respect  the  indep>endence  of  this  Prince : 

For  these  reasons  decides  and  pronounces  as  follows: 

1.  Dhows  of  Muscat  authorized  as  aforesaid  to  fly  the  French 
flag  are  entitled  in  the  territorial  waters  of  Muscat  to  the  inviola- 
bility provided  by  the  French-Muscat  treaty  of  November  17,  1844; 

2.  The  authorization  to  fly  the  French  flag  can  not  be  transmitted 
or  transferred  to  any  other  person  or  to  any  other  dhow,  even  if 
belonging  to  the  same  owner ; 

3.  Subjects  of  the  Sultan  of  Muscat,  who  are  owners  or  masters 
of  dhows  authorized  to  fly  the  French  flag  or  who  are  members 
cf  the  crews  of  such  vessels  or  who  belong  to  their  families,  do  not 
enjoy  in  consequence  of  that  fact  any  right  of  extraterritoriality, 
which  could  exempt  them  from  the  sovereignty,  especially  from  the 


ion,  of  His  Highness  the  Sultan  of  Muscat. 


THE  MUSCAT  DHOWS  CASE 


101 


Done  at  The  Hague,  in  the  Permanent  Court  of  Arbitration,  Au- 
gust 8,  1905. 

(Signed)  H.  Lammasch 
(Signed)  Melville  W,  Fuller 
(Signed)  A.  F.  de  Savornin  Lohman 


AGREEMENT  FOR  ARBITRATION 

Agreement  between  Great  Britain  and  France  referring  to  arbitration 
the  question  of  the  grant  of  the  French  flag  to  Muscat  dhows. — 
Signed  at  London,  October  13,  1904.^ 

Whereas  the  Government  of  His  Britannic  Majesty  and  that  of  the 
French  Republic  have  thought  it  right,  by  the  declaration  of  the  10th 
March,  1862,^  “to  engage  reciprocally  to  respect  the  independence”  of 
His  Highness  the  Sultan  of  Muscat; 

And  whereas  difficulties  as  to  the  scope  of  that  declaration  have 
arisen  in  relation  to  the  issue,  by  the  French  Republic,  to  certain  sub- 
jects of  His  Highness  the  Sultan  of  Muscat  of  papers  authorizing  them 
to  fly  the  French  flag,  and  also  as  to  the  nature  of  the  privileges  and 
immunities  claimed  by  subjects  of  His  Highness  who  are  owners 
or  masters  of  dhows  and  in  possession  of  such  papers  or  are  members 
of  the  crew  of  such  dhows  and  their  families,  especially  as  to  the  man- 
ner in  which  such  privileges  and  immunities  affect  the  jurisdiction  of 
His  Highness  the  Sultan  over  his  said  subjects:’ 

The  undersigned,  being  duly  authorized  thereto  by  their  respective 
Governments,  hereby  agree  that  these  questions  shall  be  determined 
by  reference  to  arbitration^  in  accordance  with  the  provisions  of  Ar- 
ticle 1 of  the  convention  concluded  between  the  two  countries  on  the 
14th  October  last,  and  that  the  decision  of  the  Hague  tribunal  shall 
be  final. 

It  is  also  hereby  agreed  as  follows: 

Article  1 

Each  of  the  high  contracting  Parties  shall  nominate  one  arbitrator, 
and  these  two  arbitrators  shall  together  choose  an  umpire ; if  they  can 
not  agree  within  one  month  from  the  date  of  their  appointment,  the 
choice  of  an  umpire  shall  be  entrusted  to  His  Majesty  the  King  of 


^Official  report,  p.  5.  For  the  French  text,  see  Appendix,  p.  471. 
^Post,  p.  103. 


102 


THE  HAGUE  COURT  REPORTS 


Italy.  The  arbitrators  and  the  umpire  shall  not  be  subjects  or  citizens 
of  either  of  the  high  contracting  Parties,  and  shall  be  chosen  from 
among  the  members  of  the  Hague  tribunal. 

Article  2 

Each  of  the  high  contracting  Parties  shall,  within  three  months  from 
the  signature  of  this  agreement,  deliver  to  each  member  of  the  tribunal 
hereby  constituted,  and  to  the  other  party,  a written  or  printed  case 
setting  forth  and  arguing  its  claims,  and  a written  or  printed  file  con- 
taining the  documents  or  any  other  evidence  in  writing  or  print  on 
which  it  relies. 

Within  three  months  after  the  delivery  of  the  above-mentioned  cases, 
each  of  the  high  contracting  Parties  shall  deliver  to  each  member  of 
the  tribunal,  and  to  the  other  party,  a written  or  printed  counter-case, 
with  the  documents  which  support  it. 

Within  one  month  after  the  delivery  of  the  counter-cases,  each  party 
may  deliver  to  each  arbitrator  and  to  the  other  party  a written  or 
printed  argument  in  support  of  its  contentions. 

The  time  fixed  by  this  agreement  for  the  delivery  of  the  case, 
counter-case,  and  argument  may  be  extended  by  the  mutual  consent 
of  the  high  contracting  Parties. 

Article  3 

The  tribunal  will  meet  at  The  Hague^  within  a fortnight  of  the  de- 
livery of  the  argfuments. 

Each  party  shall  be  represented  by  one  agent. 

The  tribunal  may,  if  they  shall  deem  further  elucidation  with  re- 
gard to  any  point  necessary,  require  from  either  agent  an  oral  or 
written  statement,  but  in  such  case  the  other  party  shall  have  the  right 
to  reply. 

Article  4 

The  decision  of  the  tribunal  shall  be  rendered  within  thirty  days  of 
its  meeting  at  The  Hague  or  of  the  delivery  of  the  statements  which 
may  have  been  supplied  at  its  request,  unless,  on  the  request  of  the 
tribunal,  the  contracting  Parties  shall  agree  to  extend  the  period. 

Article  5 

On  all  points  not  covered  by  this  agreement,  the  provisions  of  the 
Conventions  of  The  Hague  of  the  29th  July,  1899,  shall  apply. 

Done  in  duplicate  at  London,  the  13th  day  of  October,  1904. 

[L.  S.]  Landsdowne 
[L.  S.]  Paul  Cambon 


THE  MUSCAT  DHOWS  CASE 


103 


ADDITIONAL  DOCUMENTS 

Extract  from  the  Treaty  of  Friendship  and  Commerce  between  France 
and  the  Iman  of  Muscat,  concluded  at  Zanzibar,  November  17, 
1844^ 

3.  French  citizens  shall  have  the  right  to  buy,  sell,  or  lease  land, 
houses,  and  warehouses  in  the  States  of  His  Highness  the  Sultan  of 
Muscat.  No  person  shall,  under  any  pretext  whatsoever,  penetrate 
or  search  the  houses,  warehouses,  or  other  property  possessed  or  occu- 
pied by  French  citizens,  or  by  persons  in  the  employ  of  French  citi- 
zens, without  the  consent  of  the  occupant,  unless  authorized  by  the 
French  consul. 

French  citizens  shall  not,  under  any  pretext  whatsoever,  be  detained 
against  their  will  in  the  States  of  the  Sultan  of  Muscat. 

4.  The  subjects  of  His  Highness  the  Sultan  of  Muscat  who  are  in  the 
employ  of  French  citizens  shall  enjoy  the  same  protection  as  the  French 
citizens  themselves ; but,  if  they  commit  any  crime  or  misdemeanor 
punishable  by  law,  they  shall  be  discharged  by  the  French  employers 
and  delivered  up  to  the  local  authorities. 


Declaration  between  Great  Britain  and  France,  engaging  reciprocally 

to  respect  the  Independence  of  the  Sultans  of  Muscat  and  Zanzi- 
bar.— Signed  at  Paris,  March  10,  1862.^ 

Her  Majesty  the  Queen  of  the  United  Kingdom  of  Great  Britain 
and  Ireland  and  His  Majesty  the  Emperor  of  the  French,  taking  into 
consideration  the  importance  of  maintaining  the  independence  of  His 
Highness  the  Sultan  of  Muscat  and  His  Highness  the  Sultan  of  Zanzi- 
bar, "have  thought  it  right  to  engage  reciprocally  to  respect  the  inde- 
pendence of  these  sovereigns. 

The  undersigned.  Her  Britannic  Majesty’s  Ambassador  Extraor- 
dinary and  Plenipotentiary  at  the  Court  of  France,  and  the  Minister 
Secretary  of  State  for  Foreign  Affairs  of  His  Majesty  the  Emperor 
of  the  French,  being  furnished  with  the  necessary  powers,  hereby  de- 
clare, in  consequence,  that  their  said  Majesties  take  reciprocally  that 
engagement. 

In  witness  whereof,  the  undersigned  have  signed  the  present  Decla- 
ration, and  have  affixed  thereto  the  seals  of  their  arms. 

Etone  at  Paris,  the  10th  March,  1862. 

[L.  S.]  Cowley 
[L.  S.]  E.  Thouvenel 

^Translation.  For  the  original  French  text,  see  Appendix,  p.  473. 

^British  and  Foreign  State  Papers,  vol.  57,  p.  785.  For  the  French  text,  see 
Appendix,  p.  473. 


104 


THE  HAGUE  COURT  REPORTS 


Extract  from  the  General  Act  of  Brussels  of  July  2,  i8po,  for  the  Sup- 
pression of  the  African  Slave  Trade^ 

Section  II. — Regulation  Concerning  the  Use  of  the  Flag  and 
Supervision  by  Cruisers 

1.  RULES  FOR  GRANTING  THE  FLAG  TO  NATIVE  VESSELS,  AND  AS  TO  CREW 
LIST  AND  MANIFESTS  OF  BLACK  PASSENGERS  ON  BOARD 

Article  30 

The  signatory  Powers  engage  to  exercise  a strict  surveillance  over 
native  vessels  authorized  to  carry  their  flag  in  the  zone  mentioned  in 
Article  21,  and  over  the  commercial  operations  carried  on  by  such 
vessels. 

Article  31 

The  term  “native  vessel”  applies  to  vessels  fulfilling  one  of  the 
following  conditions : 

1.  It  shall  present  the  outward  appearance  of  native  build  or 
rigging. 

2.  It  shall  be  manned  by  a crew  of  whom  the  captain  and  a major- 
ity of  the  seamen  belong  by  origin  to  one  of  the  countries  on  the 
coast  of  the  Indian  Ocean,  the  Red  Sea,  or  the  Persian  Gulf. 

Article  32 

The  authorization  to  carry  the  flag  of  one  of  the  said  Powers  shall 
in  future  be  granted  only  to  such  native  vessels  as  shall  satisfy  at  the 
same  time  the  three  following  conditions; 

1.  Fitters-out  or  owners  of  ships  must  be  either  subjects  of  or  per- 
sons protected  by  the  Power  whose  flag  they  ask  to  carry. 

2.  They  shall  be  obliged  to  prove  that  they  possess  real  estate  situ- 
ated in  the  district  of  the  authority  to  whom  their  application  is  ad- 
dressed, or  to  furnish  bona  hde  security  as  a guaranty  of  the  payment 
of  such  fines  as  may  be  incurred. 

3.  The  above-named  fitters-out  or  owners  of  ships,  as  well  as  the 
captain  of  the  vessel,  shall  prove  that  they  enjoy  a good  reputation, 
and  that  in  particular  they  have  never  been  sentenced  to  punishment 
for  acts  connected  with  the  slave  trade. 


^Translation.  For  the  original  French  text,  see  Appendix,  p.  474. 


THE  MUSCAT  DHOWS  CASE 


105 


Article  33 

This  authorization  granted  shall  be  renewed  every  year.  It  may  at 
any  time  be  suspended  or  withdrawn  by  the  authorities  of  the  Power 
whose  colors  the  vessel  carries. 

Article  34 

The  act  of  authorization  shall  contain  the  statements  necessary  to 
establish  the  identity  of  the  vessel.  The  captain  shall  have  the  keep- 
ing thereof.  The  name  of  the  native  vessel  and  the  amount  of  its  ton- 
nage shall  be  cut  and  painted  in  Latin  characters  on  the  stern,  and  the 
initial  or  initials  of  the  name  of  the  port  of  registry,  as  well  as  the 
registration  number  in  the  series  of  the  numbers  of  that  port,  shall  be 
printed  in  black  on  the  sails. 

Article  35 

A list  of  the  crew  shall  be  issued  to  the  captain  of  the  vessel  at  the 
port  of  departure  by  the  authorities  of  the  Power  whose  colors  it 
carries.  It  shall  be  renewed  at  every  fresh  venture  of  the  vessel,  or, 
at  the  latest,  at  the  end  of  a year,  and  in  accordance  with  the  following 
provisions : 

1.  The  vessel  shall  be  visaed  at  the  departure  of  the  vessel  by  the 
authority  that  has  issued  it. 

2.  No  negro  can  be  engaged  as  a seaman  on  a vessel  without  having 
previously  been  questioned  by  the  authority  of  the  Power  whose  colors 
it  carries,  or,  in  default  thereof,  by  the  territorial  authority  with  a 
view  to  ascertaining  the  fact  of  his  having  contracted  a free  engage- 
ment. 

3.  This  authority  shall  see  that  the  proportion  of  seamen  and  boys 
is  not  out  of  proportion  to  the  tonnage  or  rigging. 

4.  The  authorities  who  shall  have  questioned  the  men  before  their 
departure  shall  enter  them  on  the  list  of  the  crew  in  which  they  shall 
be  mentioned  with  a summary  description  of  each  of  them  alongside 
his  name. 

5.  In  order  the  more  effectively  to  prevent  any  substitution,  the  sea- 
men may,  moreover,  be  provided  with  a distinctive  mark. 

Article  36 

When  the  captain  of  a vessel  shall  desire  to  take  negro  passengers 
on  board,  he  shall  make  his  declaration  to  that  effect  to  the  authority 
of  the  Power  whose  colors  he  carries,  or  in  default  thereof,  to  the 


106 


THE  HAGUE  COURT  REPORTS 


territorial  authority.  The  passengers  shall  be  questioned,  and  after 
it  has  been  ascertained  that  they  embarked  of  their  own  free  will,  they 
shall  be  entered  in  a special  manifest,  bearing  the  description  of  each 
of  them  alongside  of  his  name,  and  specially  sex  and  height.  Negro 
children  shall  not  be  taken  as  passengers  unless  they  are  accompanied 
by  their  relations,  or  by  persons  whose  respectability  is  well  known. 
At  the  departure,  the  passenger  roll  shall  be  visaed  by  the  aforesaid 
authority  after  it  has  been  called.  If  there  are  no  passengers  on  board, 
this  shall  be  specially  mentioned  in  the  crew-list. 

Article  37 

At  the  arrival  at  any  port  of  call  or  of  destination,  the  captain  of 
the  vessel  shall  show  to  the  authority  of  the  Power  whose  flag  he 
carries,  or,  in  default  thereof,  to  the  territorial  authority,  the  crew- 
list,  and,  if  need  be,  the  passenger- roll  previously  delivered.  The 
authority  shall  check  the  passengers  who  have  reached  their  destination 
or  who  are  stopping  in  a port  of  call,  and  shall  mention  their  landing 
in  the  roll.  At  the  departure  of  the  vessel,  the  same  authority  shall 
affix  a fresh  visa  to  the  list  and  roll,  and  call  the  roll  of  the  passen- 
gers. 

Article  38 

On  the  African  coast  and  on  the  adjacent  islands,  no  negro  pas- 
sengers shall  be  taken  on  board  of  a native  vessel,  except  in  localities 
where  there  is  a resident  authority  belonging  to  one  of  the  signatory 
Powers. 

Throughout  the  extent  of  the  zone  mentioned  in  Article  21,  no  negro 
passenger  shall  be  landed  from  a native  vessel  except  at  a place  in 
which  there  is  a resident  officer  belonging  to  one  of  the  high  contract- 
ing Powers,  and  unless  such  officer  is  present  at  the  landing. 

Cases  of  force  majeure  that  may  have  caused  an  infraction  of  these 
provisions  shall  be  examined  by  the  authority  of  the  Power  whose 
colors  the  vessel  carries,  or,  in  default  thereof,  by  the  territorial  author- 
ity of  the  port  at  which  the  vessel  in  question  calls. 

Article  39 

The  provisions  of  Articles  35,  36,  37,  and  38  are  not  applicable  to 
vessels  only  partially  decked,  having  a crew  not  exceeding  ten  men, 
and  fulfilling  one  of  the  two  following  conditions : 

1.  That  it  be  exclusively  used  for  fishing  within  the  territorial 


waters. 


THE  MUSCAT  DHOWS  CASE 


107 


2.  That  it  be  occupied  in  the  petty  coasting  trade  between  the  differ- 
ent ports  of  the  same  territorial  Power,  without  going  further  than  five 
miles  from  the  coast. 

These  different  boats  shall  receive,  as  the  case  may  be,  a special 
license  from  the  territorial  or  consular  authority,  which  shall  be  re- 
newed every  year,  and  subject  to  revocation  as  provided  in  Article  40, 
the  uniform  model  of  which  license  is  annexed  to  the  present  General 
Act  and  shall  be  communicated  to  the  international  information  office. 

Article  40 

Any  act  or  attempted  act  connected  with  the  slave  trade  that  can  be 
legally  shown  to  have  been  committed  by  the  captain,  fitter-out,  or 
owner  of  a ship  authorized  to  carry  the  flag  of  one  of  the  signatory 
Powers,  or  having  procured  the  license  provided  for  in  Article  39,  shall 
entail  the  immediate  withdrawal  of  the  said  authorization  or  license. 
All  violations  of  the  provisions  of  section  2 of  Chapter  III  shall 
render  the  person  guilty  thereof  liable  to  the  jienalties  provided  by 
the  special  laws  and  ordinances  of  each  of  the  contracting  Parties. 

Article  41 

The  signatory  Powers  engage  to  deposit  at  the  international  infor- 
mation office  the  specimen  forms  of  the  following  documents : 

1.  License  to  carry  the  flag; 

2.  The  crew-list; 

3.  The  negro  passenger  list. 

These  documents,  the  tenor  of  which  may  vary  according  to  the 
different  regulations  of  each  country,  shall  necessarily  contain  the  fol- 
lowing particulars,  drawn  up  in  one  of  the  European  languages : 

1.  As  regards  the  authorization  to  carry  the  flag; 

(a)  The  name,  tonnage,  rig,  and  the  principal  dimensions  of  the 
vessel ; 

(b)  The  register  number  and  the  signal  letter  of  the  port  of 
registry ; 

(c)  The  date  of  obtaining  the  license,  and  the  office  held  by  the 
person  who  issued  it. 

2.  As  regards  the  list  of  the  crew : 

(a)  The  name  of  the  vessel,  of  the  captain  and  the  fitter-out  or 
owner ; 

(b)  The  tonnage  of  the  vessel; 

(c)  The  register  number  and  the  port  of  registry,  its  destination,  as 
well  as  the  particulars  specified  in  Article  25. 


108 


THE  HAGUE  COURT  REPORTS 


3.  As  regards  the  list  of  negro  passengers; 

The  name  of  the  vessel  which  conveys  them,  and  the  particulars  in- 
dicated in  Article  36,  for  the  proper  identification  of  the  passengers. 

The  signatory  Powers  shall  take  the  necessary  measures  so  that  the 
territorial  authorities  or  their  consuls  may  send  to  the  same  office  certi- 
fied copies  of  all  authorizations  to  carry  their  flag  as  soon  as  such 
authorizations  shall  have  been  granted,  as  well  as  notices  of  the  with- 
drawal of  any  such  authorization. 

The  provisions  of  the  present  article  have  reference  only  to  papers 
intended  for  native  vessels. 


Agreement,  supplevventary  to  the  agreement  for  arbitration,  prox-iding 
that  the  term  for  the  delivery  of  the  cases  shall  be  extended  to  Feb- 
ruary /,  ipo^. — Signed  at  London,  January  /j, 

The  formation  of  the  arbitral  tribunal  established  by  the  agree- 
ment signed  at  London  on  the  13th  October,  1904,-  having  been  de- 
layed for  some  days  by  circumstances  beyond  the  control  of  the  high 
contracting  Parties,  the  Government  of  His  Britannic  Majesty  and  the 
Government  of  the  French  Republic  have  agreed  that  it  is  desirable  to 
avail  themselves  of  the  power  granted  to  them  by  paragraph  4 of  Ar- 
ticle 2 of  the  said  agreement  to  extend  the  period  fixed  for  the  deliv- 
ery of  the  case. 

They  therefore  hereby  agree  to  fix  the  1st  February  as  the  date  on 
which  the  case  or  documents  shall  be  delivered  by  the  parties  to  the 
members  of  the  arbitral  tribunal  and  the  two  Governments  concerned. 

It  is  also  agreed  that  the  successive  periods  fixed  by  Article  2 of  the 
ag^reement  for  the  several  stages  of  the  procedure  in  the  arbitration 
shall  date  from  the  1st  Februar>’  instead  of  from  the  13th  January-, 
the  date  fixed  by  the  terms  of  the  agreement  signed  by  Lord  Lans- 
downe  and  M.  Paul  Gambon  on  the  13th  October,  1904. 

Done  in  duplicate,  at  London,  the  13th  day  of  January.  1905. 

[L.  S.]  Lansdowne 
[L.  S.]  Paul  Gambon 


^Oflidal  report,  p.  9.  For  the  French  text,  see  Appendix,  p.  477. 
-Ante,  p.  101. 


THE  MUSCAT  DHOWS  CASE 


109 


Agreement  supplementary  to  the  agreement  for  arbitration,  providing 
that  the  period  fixed  for  the  delivery  of  the  argument  shall  be  ex- 
tended to  a date  to  be  fixed  by  the  arbitral  tribunal. — Signed  at 
London,  May  ig,  1905.^ 

The  constitution  of  the  arbitral  tribunal  created  by  the  agreement 
signed  at  London  on  October  13,  1904,  having  been  delayed  for  some 
days  owing  to  circumstances  beyond  the  control  of  the  high  contract- 
ing Parties,  the  Government  of  His  Britannic  Majesty  and  the  Gov- 
ernment of  the  French  Republic  have,  by  mutual  consent,  deemed  it 
expedient  to  avail  themselves  of  the  power  granted  to  them  by  para- 
graph four  of  Article  2 of  the  said  agreement  to  extend  the  period 
fixed  for  the  delivery  of  the  arguments. 

They  therefore  hereby  agree  to  leave  to  the  arbitral  tribunal  the 
duty  of  fixing  the  date  on  which  the  members  of  the  said  tribunal 
and  the  two  Governments  concerned  shall  receive  the  arguments  pre- 
sented by  the  parties. 

This  additional  agreement  shall  be  communicated  to  the  arbitral 
tribunal  through  the  medium  of  the  International  Bureau  of  the 
Permanent  Court  of  Arbitration. 

Done  in  duplicate  at  London,  the  19th  day  of  May,  1905. 

(L.  S.)  Lansdowne 
(L.  S.)  Paul  Gambon 


^Official  report,  p.  11.  For  the  French  text,  see  Appendix,  p.  477. 


THE  CASABLANCA  CASE 

between 

FRANCE  and  GERMANY 
Decided  May  22,  1909 
Syllabus 

This  arbitration  arose  from  a conflict  of  jurisdiction  between  the 
French  military  authorities  in  occupation  of  Casablanca,  Morocco,  and 
the  German  consul,  acting  under  the  extraterritorial  jurisdiction  of 
his  Government  in  Morocco. 

In  the  fall  of  1908  six  soldiers  belonging  to  the  French  Foreign 
Legion  stationed  at  Casablanca,  three  of  whom  subsequently  turned 
out  to  be  of  German  nationality,  deserted  and  applied  to  the  German 
consul  for  protection  and  were  granted  by  him  safe  conduct  to  their 
homes.  Before  they  could  be  embarked,  however,  they  were  forcibly 
arrested  by  French  soldiers  and  taken  from  the  protection  of  the 
consul.  France  protested  that  Germany  had  no  right  to  afford  pro- 
tection to  persons  in  Morocco  not  of  German  nationality ; that  the 
territory  in  her  military  occupancy  in  Morocco  was  subject  to  her 
exclusive  jurisdiction,  and,  therefore,  that  Germany  had  no  right  to 
attempt  to  protect  the  three  deserters  of  German  nationality.  Ger- 
many claimed  that  the  deserters  of  German  nationality  were,  by  virtue 
of  the  extraterritorial  jurisdiction  of  Germany  in  Morocco,  subject 
exclusively  to  the  jurisdiction  and  protection  of  the  German  consul 
at  Casablanca,  that  the  forcible  arrest  of  the  deserters  was  a breach 
of  the  inviolability  of  her  consular  agents,  and  she  demanded  that 
the  three  Germans  be  delivered  up. 

Failing  a diplomatic  settlement,  the  case  was  referred  by  a 
compromis  signed  November  24,  1908,^  to  a tribunal  selected  from  the 
Permanent  Court  as  follows:  K.  Hj.  L.  Hammarskjold  of  Sweden, 

Sir  Edward  Fry  of  England,  Louis  Renault  of  France,  Guido  Fusinato 
of  Italy,  and  J.  Kriege  of  Germany.  The  sessions  began  May  1,  1909, 
and  ended  May  17,  1909,  the  decision  being  rendered  on  May  22,  1909. 

The  tribunal  decided  that  the  conflict  between  the  two  jurisdictions 
could  not  be  determined  by  any  absolute  and  general  rule,  but  that, 
under  the  circumstances  of  this  case,  the  deserters  of  German  nation- 
ality who  belonged  to  the  French  military  forces  stationed  at  and  in 
control  of  the  fortified  city  of  Casablanca  were  subject  to  the  ex- 
clusive militar>"  jurisdiction  of  France  while  they  remained  within  the 
territory  occupied  and  controlled  by  her  forces.  Owing  to  the  com- 
plexity of  the  question  of  the  conflict  of  jurisdiction,  however,  the 


^Post,  p.  117. 


THE  CASABLANCA  CASE 


111 


tribunal  held  that  no  blame  attached  to  the  German  consul  for  granting 
protection  to  such  deserters,  but  the  secretary  of  the  consulate  was  held 
guilty  of  a grave  violation  of  his  duties  for  obtaining  the  protection 
of  the  consul  for  the  deserters  not  of  German  nationality.  The  tribunal 
further  held  that  the  French  military  authorities  should  have  respected 
the  authority  of  the  German  consul  by  leaving  the  deserters  in  his 
possession  until  the  question  of  jurisdiction  could  be  decided,  taking 
only  such  steps  as  were  necessary  to  prevent  their  escape.  The  use 
of  force  by  the  French  soldiers  was  declared  to  be  unwarranted,  but, 
in  view  of  the  tribunal’s  previous  holding  that  the  military  jurisdiction 
of  France  took  precedence  over  the  extraterritorial  jurisdiction  of 
Germany,  it  declined  to  direct  the  surrender  of  the  deserters. 


AWARD  OF  THE  TRIBUNAL 

Award  of  the  arbitration  tribunal  in  the  Casblanca  case. — The 

Hague,  May  22,  igog} 

Whereas,  by  a protocol  of  November  10,  1908,^  and  an  agreement 
to  arbitrate  of  the  24th  of  the  same  month,®  the  Government  of  the 
French  Republic  and  the  Imperial  German  Government  agreed  to 
refer  to  a tribunal  of  arbitration  composed  of  five  members  the  set- 
tlement of  the  questions  of  fact  and  law  arising  from  the  events 
which  occurred  at  Casablanca  on  September  25,  1908,  between 
agents  of  the  two  countries;  and 

Whereas,  in  accordance  with  said  agreement  to  arbitrate,  the  two 
Governments  have  respectively  appointed  as  arbitrators  the  follow- 
ing persons,  namely : 

The  Government  of  the  French  Republic,  the  Right  Honorable 
Sir  Edward  Fry,  Doctor  of  Laws,  former  judge  of  the  Court  of 
Appeals,  member  of  the  Privy  Council  of  the  King,  member  of  the 
Permanent  Court  of  Arbitration,  and  Mr.  Louis  Renault,  member 
of  the  Institute  of  France,  Minister  Plenipotentiary,  professor  in 
the  Faculty  of  Law  of  Paris,  Solicitor  of  the  Ministry  of  Foreign 
A ffairs,  member  of  the  Permanent  Court  of  Arbitration ; and 

The  Imperial  German  Government,  Mr.  Guido  Fusinato,  Doctor 
of  Laws,  former  Minister  of  Public  Instruction,  former  professor 
of  international  law  at  the  University  of  Turin,  deputy  to  the  Italian 

'‘■American  Journal  of  International  Law,  vol.  3,  p.  755.  For  the  original 
French  text,  see  Appendix,  p.  479. 

^Post,  p.  119. 


^Post,  p.  117. 


112 


THE  HAGUE  COURT  REPORTS 


Parliament,  Counselor  of  State,  member  of  the  Permanent  Court  of 
Arbitration,  and  Mr.  Kriege,  Doctor  of  Laws,  present  Privy  Coun- 
selor of  Legation,  reporting  Coimselor  and  Solicitor  of  the  Depart- 
ment of  Foreign  Affairs,  member  of  the  Permanent  Court  of  Arbi- 
tration; and 

Whereas,  the  arbitrators  thus  appointed  being  instructed  to  name 
an  umpire,  chose  as  such  Mr.  K.  Hj.  L.  Hammarskjold,  Doctor  of 
Laws,  former  Minister  of  Justice,  former  Minister  of  Worship  and 
Public  Instruction,  former  Envoy  Extraordinary  and  Minister 
Plenipotentiary  to  Copenhagen,  former  president  of  the  Court  of 
Appeals  of  Jonkoping,  former  professor  in  the  Faculty  of  Law  of 
L^psal,  Governor  of  the  Province  of  Upsal,  member  of  the  Perma- 
nent Court  of  Arbitration;  and 

Whereas,  in  accordance  with  the  provisions  of  the  agreement  to 
arbitrate  of  November  24,  1908,  the  cases  and  counter-cases  were 
duly  exchanged  between  the  parties  and  communicated  to  the  arbi- 
trators ; and 

Whereas,  the  tribunal,  constituted  as  above  stated,  convened  at 
The  Hague  on  May  1,  1909;  and 
Whereas,  the  two  Governments  respectively  designated  as  their 
• agents  the  following  persons,  namely : 

The  Government  of  the  French  Republic,  Mr.  Andre  Weiss,  pro- 
cessor in  the  Faculty  of  Law  in  Paris,  assistant  solicitor  of  the  Min- 
istry of  Foreign  Affairs;  and 

1 The  Imperial  German  Gevemment,  Mr.  Albrecht  Lentze,  Doctor 
of  Laws,  Privy  Counselor  of  Legation,  reporting  Counselor  of  the 
Department  of  Foreign  Affairs;  and 

Whereas,  the  agents  of  the  parties  have  presented  to  the  tribunal 
the  following  conclusions,  namely-: 

The  agent  of  the  Government  of  the  French  Republic: 

May  it  please  the  tribunal — 

To  say  and  decide  that  it  was  wrong  for  the  consul  and  the  offi- 
cers of  the  Imperial  German  consulate  at  Casablanca  to  attempt  to 
embark  on  a German  ship  deserters  from  the  French  Foreign  Legion 
^ who  were  not  German  subjects; 

, ; To  say  and  decide  that  it  was  wrong  for  said  consul  and  consular 
y ‘ officers,  under  the  same  circumstances,  to  grant,  on  the  territory 
^ \occupied  by  the  French  landing  corps  at  Casablanca,  their  protec- 


THE  CASABLANCA  CASE 


113 


j tion  and  material  assistance  to  three  other  members  of  the  Legion 
/ whom  they  thought  or  might  have  thought  to  be  Germans,  thus  dis- 
/ regarding  the  exclusive  right  of  jurisdiction  belonging  to  the  occupy- 
I ing  nation  in  foreign  territory,  even  in  a country  granting  extra- 
/ territorial  jurisdiction,  with  respect  to  the  soldiers  of  the  army  of 
I occupation  and  to  acts  likely  to  endanger  its  safety,  whatever  they 
j be  or  wherever  they  may  originate ; 

To  say  and  decide  that,  in  the  persons  of  Mr.  Just,  chancellor  of 
the  Imperial  consulate,  Casablanca,  and  of  the  Moroccan  soldier 
Abd-el-Kerim  ben  Mansour,  no  breach  of  the  rules  regarding  con- 
sular inviolability  was  committed  by  the  French  officers,  soldiers, 
and  sailors,  who  arrested  the  deserters,  and  that  in  repelling  the 
attacks  and  acts  of  violence  directed  against  them  the  said  officers, 
soldiers,  and  sailors,  merely  availed  themselves  of  the  right  of  self- 


defense. 

The  agent  of  the  Imperial  German  Government : 

May  it  please  the  tribunal — 

1.  As  regards  the  points  of  fact,  to  declare  that  three  individuals 
who  had  previously  served  in  the  French  Foreign  Legion,  namely, 
Walter  Bens,  Heinrich  Heinnemann,  and  Julius  Meyer,  all  three 
Germans,  were,  on  September  25,  1908,  at  the  port  of  Casablanca, 
Vv^hile  accompanied  by  agents  of  Germany,  violently  wrested  from 
the  latter  and  arrested  by  agents  of  France,  and  that  on  this  occa- 
sion agents  of  Germany  were  attacked,  maltreated,  outraged,  and 
threatened  by  the  agents  of  France; 

2.  As  regards  the  points  of  law,  to  declare  that  the  three  individ- 
uals mentioned  tmder  No.  1 above  were,  on  September  25,  1908, 
subject  exclusively  to  the  jurisdiction  and  protection  of  the  Imperial 
German  consulate  at  Casablanca,  and  that  agents  of  France  had  no 
authority  at  that  time  to  interfere  with  agents  of  Germany  in  grant- 
ing German  protection  to  these  three  individuals  and  to  claim  for 
themselves  a right  of  jurisdiction  over  said  individuals ; 

3.  As  regards  the  status  of  the  individuals  arrested  on  September 
25,  1908,  and  concerning  whom  there  is  a dispute,  to  decide  that 
the  Government  of  the  French  Republic  shall  release  the  three  Ger- 
mans mentioned  under  No.  1 above  as  soon  as  possible  and  place 
them  at  the  disposal  of  the  German  Government. 

And  whereas,  the  agent  of  the  French  Republic,  in  the  hearing  of 


114 


THE  HAGUE  COURT  REPORTS 


May  17,  1909,  declared  that  in  his  conclusions  the  only  measures 
referred  to,  either  with  respect  to  the  deserters  of  German  nation- 
ality, or  the  others,  are  those  taken  by  the  German  agents  after  the 
desertion  and  with  a view  to  embarking  the  deserters ; and 

Whereas,  after  the  tribunal  had  heard  the  oral  statements  of  the 
agents  of  the  parties  and  the  explanations  which  they  furnished  it 
at  its  request,  the  debates  were  declared  closed  at  the  hearing  of 
May  17,  1909;  and 

Whereas,  under  the  extraterritorial  jurisdiction  in  force  in  Mo- 
rocco the  German  consular  authority  as  a rule  exercises  exclusive 
^jurisdiction  over  all  German  subjects  in  that  country;  and 

Chereas,  on  the  other  hand,  a corps  of  occupation  as  a rule  also 
:ises  exclusive  jurisdiction  over  all  persons  belonging  to  it;' and 
Whereas,  this  right  of  jurisdiction  should  be  recognized  as  a rule 
even  in  countries  granting  extraterritorial  jurisdiction;  and 

Whereas,  in  case  the  subjects  of  a Power  enjoying  the  rights  of 
territorial  jurisdiction  in  Morocco  belong  to  a corps  of  occupation 
sent  to  that  country  by  another  Power,  there  necessarily  arises  a 
conflict  between  the  two  jurisdictions  mentioned ; and 

Whereas,  the  French  Government  did  not  make  known  the  com- 
position of  the  expeditionary  corps  and  did  not  declare  that  the  fact 
of  the  military  occupation  modified  the  exclusive  consular  jurisdic- 
tion arising  from  the  extraterritorial  rights,  and  that,  on  the  other 
hand,  the  German  Government  made  no  protest  regarding  the  em- 
ployment in  Morocco  of  the  Foreign  Legion,  which  is  known  to  be 
composed  in  part  of  German  subjects;  and 

Whereas,  it  is  not  within  the  province  of  this  tribunal  to  express 
an  opinion  regarding  the  organization  of  the  Foreign  Legion  or  its 
employment  in  Morocco;  and 

Whereas,  the  conflict  of  jurisdictions  mentioned  above  can  not 
be  decided  by  an  absolute  rule  which  would  in  a general  manner  ac- 
cord the  preference  to  either  of  the  two  concurrent  jurisdictions; 
and 

Whereas,  in  each  particular  case  account  must  be  taken  of  the 
actual  circumstances  which  tend  to  determine  the  preference;  and 
Whereas,  the  jurisdiction  of  the  corps  of  occupation  should  have 
the  preference  in  case  of  a conflict  when  the  persons  belonging  to 
this  corps  have  not  left  the  territory  which  is  under  the  immediate, 
lasting,  and  effective  control  of  the  armed  force;  and 


THE  CASABLANCA  CASE 


115 


Whereas,  at  the  period  in  question  the  fortified  city  of  Casablanca 
was  occupied  and  guarded  by  French  military  forces  which  consti- 
tuted the  garrison  of  that  city  and  were  stationed  either  in  the  city 
itself  or  in  the  surrounding  camps;  and 

^ Whereas,  under  these  circumstances  the  deserters  of  German 
nationality  who  belonged  to  the  military  forces  of  one  of  these 
camps  and  were  within  the  inclosure  of  the  city,  remained  subject 
to  the  exclusive  military  jurisdiction;  and 

Whereas,  on  the  other  hand,  in  a country  granting  extraterritorial 
jurisdiction  the  question  of  the  respective  competency  of  the  consular 
and  the  military  jurisdiction  is  very  complicated  and  has  never  been 
settled  in  an  express,  distinct,  and  universally  recognized  manner,  so 
that  the  German  consular  authority  could  not  incur  any  blame  for 
having  granted  his  protection  to  the  afore-mentioned  deserters  who 
had  solicited  it;  and 

Whereas,  the  German  consul  at  Casablanca  did  not  grant  the 
protection  of  the  consulate  to  the  deserters  of  non-German  nation- 
ality and  the  dragoman  of  the  consulate  also  did  not  exceed  the 
limits  of  his  authority  in  this  regard ; and 

Whereas,  the  fact  that  the  consul,  without  reading  it,  signed  the 
safe-conduct  for  six  persons  instead  of  three  and  omitted  to  state 
that  they  were  of  German  nationality,  as  he  had  prescribed  himself, 
can  not  be  imputed  against  him  except  as  an  unintentional  error; 
and 

Whereas,  the  Moroccan  soldier  at  the  consulate,  in  aiding  the  de- 
serters to  embark,  acted  only  in  accordance  with  orders  from  his 
superiors  and,  by  reason  of  his  inferior  position,  could  not  have  in- 
curred any  personal  responsibility;  and 

Whereas,  the  secretary  of  the  consulate  intentionally  sought  to 
embark  the  deserters  of  non-German  nationality  as  enjoying  the 
protection  of  the  consulate;  and 

Whereas,  for  this  purpose  he  deliberately  induced  the  consul  to 
sign  the  above-mentioned  safe-conduct  and  with  the  same  intention 
took  measures  both  to  conduct  the  deserters  to  the  port  and  to  have 
them  embarked;  and 

Whereas,  in  acting  thus  he  exceeded  the  limits  of  his  authority 
and  committed  a grave  and  manifest  violation  of  his  duties ; and 
Whereas,  the  deserters  of  German  nationality  were  found  at  the 


116 


THE  HAGUE  COURT  REPORTS 


port  under  the  actual  protection  of  the  German  consular  authority 
and  this  protection  was  not  manifestly  illegal;  and 

Whereas,  this  actual  situation  should  have  been  respected  by  the 
French  military  authority  as  far  as  possible;  and 

Whereas,  the  deserters  of  German  nationality  were  arrested  by 
said  authority  despite  the  protests  made  in  the  name  of  the  con- 
sulate; and 

Whereas,  the  militar}^  authority  might  and  therefore  ought  to 
liave  confined  itself  to  preventing  the  embarkation  and  escape  of 
the  deserters,  and,  before  proceeding  to  their  arrest  and  imprison- 
ment, to  offering  to  leave  them  in  sequestration  at  the  German  con- 
sulate until  the  question  of  the  competent  jurisdiction  had  been  de- 
cided; and 

Whereas,  this  mode  of  procedure  would  also  have  tended  to  main- 
tain the  prestige  of  the  consular  authority,  in  conformity  with  the 
common  interests  of  all  Europeans  living  in  Morocco;  and 

Whereas,  even  if  we  admit  the  legality  of  the  arrest  the  circum- 
stances did  not  warrant,  on  the  part  of  the  French  soldiers,  either 
the  threats  made  with  a revolver  or  the  prolongation  of  the  shots 
iired  at  the  Moroccan  soldier  of  the  consulate  even  after  his  resist- 
ance had  been  overcome;  and 

Whereas,  as  regards  the  other  outrages  or  acts  of  violence  alleged 
on  both  sides,  the  order  and  the  exact  nature  of  the  events  can  not 
be  determined;  and 

Whereas,  in  accordance  with  what  was  said  above,  the  deserters 
of  German  nationality  should  have  been  returned  to  the  consulate 
in  order  to  restore  the  actual  situation  which  was  disturbed  by  their 
arrest;  and 

Whereas,  such  restitution  would  also  have  been  desirable  with  a 
view  to  maintaining  the  consular  prestige ; however,  inasmuch  as,  in 
the  present  state  of  things,  this  tribunal  being  called  upon  to  deter- 
mine the  final  status  of  the  deserters,  there  is  no  occasion  for  order- 
ing their  provisional  and  temporary  surrender  which  should  have 
taken  place; 

Therefore : 

The  tribunal  of  arbitration  declares  and  decides  as  follows : 

It  was  wrong  and  a grave  and  manifest  error  for  the  secretary  of 
the  Imperial  German  consulate  at  Casablanca  to  attempt  to  have  em- 


THE  CASABLANCA  CASE 


117 


barked,  on  a German  steamship,  deserters  from  the  French  Foreign 
Legion  who  were  not  of  German  nationality. 

The  German  consul  and  the  other  officers  of  the  consulate  are  not 
responsible  in  this  regard;  however,  in  signing  the  safe-conduct 
which  was  presented  to  him,  the  consul  committed  an  unintentional 
error. 

^ The  German  consulate  did  not,  under  the  circumstances  of  the 
case,  have  a right  to  grant  its  protection  to  the  deserters  of  German 
nationality;  however,  the  error  of  law  committed  on  this  point  by 
the  officers  of  the  consulate  can  not  be  imputed  against  them  either 
as  an  intentional  or  unintentional  error. 

It  was  wrong  for  the  French  military  authorities  not  to  respect, 
as  far  as  possible,  the  actual  protection  being  granted  to  these  de- 
serters in  the  name  of  the  German  consulate.. 

Even  leaving  out  of  consideration  the  duty  to  respect  consular 
protection,  the  circumstances  did  not  warrant,  on  the  part  of  the 
French  soldiers,  either  the  threat  made  with  a revolver  or  the  pro- 
longation of  the  shots  fired  at  the  Moroccan  soldier  of  the  consulate. 

There  is  no  occasion  for  passing  on  the  other  charges  contained 
in  the  conclusions  of  the  two  parties. 

Done  at  The  Hague  in  the  building  of  the  Permanent  Court  of 
Arbitration,  May  22,  1909. 

Hj.  L.  Hammarskjold,  President 
Michiels  van  Verduynen,  Secretary  General 


AGREEMENT  FOR  ARBITRATION 

Comprontis  of  arbitration  relative  to  the  questions  raised  by  the  events 
which  occurred  at  Casablanca,  September  2^,  ipo8. — Signed  at 
Berlin,  November  24,  ipo8} 

The  Imperial  German  Government  and  the  Government  of  the 
French  Republic,  having  agreed,  November  10,  1908,^  to  submit  to 
arbitration  all  the  questions  raised  by  the  events  which  occurred  at 
Casablanca  September  25,  last,  the  undersigned,  duly  authorized  for 
that  purpose,  have  agreed  upon  the  following  compromis. 

Article  1 

An  arbitral  tribunal,  composed  as  hereinafter  stipulated,  is  charged 


^Translation.  For  the  original  French  text,  see  Appendix,  p.  484. 
^Post,  p.  119. 


118 


THE  HAGUE  COURT  REPORTS 


with  the  settlement  of  questions  of  fact  and  of  law  which  brought 
about  the  events  which  occurred  at  Casablanca  September  25,  last,  be- 
tween the  agents  of  the  two  countries. 

Article  2 

The  arbitral  tribunal  shall  be  composed  of  five  arbitrators,  to  be 
chosen  from  among  the  members  of  the  Permanent  Court  of  Arbitra- 
tion at  The  Hague. 

Each  Government,  as  soon  as  possible  and  within  a period  not  to 
exceed  fifteen  days  from  the  date  of  the  present  compromis,  shall 
choose  two  arbitrators,  of  which  only  one  may  be  its  national.  The 
four  arbitrators  thus  designated  shall  choose  an  umpire  within  a fort- 
night from  the  day  on  which  they  are  notified  of  their  own  designation. 

Article  3 

On  February  1,  1909,  each  party  shall  transmit  to  the  Bureau  of 
the  Permanent  Court  eighteen  copies  of  its  memorial,  with  the  certi- 
fied copies  of  all  papers  and  documents  which  it  intends  to  present  in 
the  case.  The  Bureau  shall  guarantee  their  transmission  without 
delay  to  the  arbitrators  and  parties,  to  wit:  two  copies  for  each  arbi- 
trator, three  copies  for  each  party.  Two  copies  shall  remain  in  the 
archives  of  the  Bureau. 

On  April  1,  1909,  the  parties  shall  in  like  manner  deposit  their 
counter-memorials,  with  the  papers  appertaining  thereto,  and  their  final 
conclusions. 


Article  4 

Each  party  shall  deposit  with  the  International  Bureau,  not  later 
than  the  15th  of  April,  the  advance  sum  of  3,000  Netherland  florins 
for  the  expenses  of  the  litigation. 

Article  5 

The  tribunal  shall  meet  at  The  Hague  on  May  1,  1909,  and  shall 
proceed  immediately  to  the  investigation  of  the  dispute. 

It  shall  have  authority  to  move  itself  temporarily  or  to  delegate  one 
or  more  of  its  members  to  move  to  whatever  place  seems  necessary  in 
order  to  proceed  with  the  securing  of  information  under  the  condi- 
tions of  Article  20  of  the  Convention  for  the  pacific  settlement  of  in- 
ternational disputes,  of  October  18,  1907. 


THE  CASABLANCA  CASE 


119 


Article  6 

The  parties  may  make  use  of  either  the  German  or  the  French 
language. 

The  members  of  the  tribunal  may,  according  to  choice,  use  either 
the  German  or  the  French  language.  The  decisions  of  the  tribunal 
shall  be  rendered  in  both  languages. 

• Article  7 

Each  party  shall  be  represented  by  a special  agent  whose  duty  it 
shall  be  to  serve  as  intermediary  between  it  and  the  tribunal.  These 
agents  shall  give  the  expositions  demanded  of  them  by  the  tribunal 
and  may  present  any  pleas  which  they  may  deem  useful  in  the  defense 
of  their  cause. 

Article  8 

On  all  points  not  set  forth  in  the  present  compromis,  the  stipula- 
tions of  the  above-mentioned  Convention  of  October  18,  1907,  of 
which  ratifications  have  not  yet  been  exchanged  but  which  has  been 
signed  alike  by  Germany  and  France,  shall  be  applicable  to  the  present 
arbitration. 

Article  9 

After  the  arbitral  tribunal  shall  have  solved  the  questions  of  fact 
and  of  law  which  have  been  submitted  to  it,  it  shall  decide,  in  con- 
sequence, the  case  of  the  individuals  arrested  September  25,  last,  on 
which  subject  the  present  dispute  rests. 

Done,  in  duplicate,  at  Berlin,  November  24,  1908. 

[seal]  Kiderlen 
[seal]  Jules  Gambon 


ADDITIONAL  DOCUMENTS 

Protocol  between  France  and  Germany  containing  a formula  of  re- 
grets for  events  which  occurred  at  Casablanca  on  the  25th  Sep- 
tember, IQ08. — Signed  at  Berlin,  November  10,  igo8} 

The  two  Governments,  regretting  the  events  which  occurred  at 
Casablanca  on  September  25,  last,  and  which  led  the  sub-agents  into 
violence  and  grievous  assault,  are  resolved  to  submit  all  the  questions 
raised  on  this  subject  to  arbitration. 

By  mutual  consent,  each  of  the  two  Governments  agrees  to  express 
its  regrets  for  the  acts  of  these  agents,  following  the  decisions  which 


^Translation.  For  the  original  French  text,  see  Appendix,  p.  485. 


120 


THE  HAGUE  COURT  REPORTS 


the  arbitrators  shall  render  based  upon  the  facts  and  the  question  of 
law. 

Berlin,  November  10,  1908. 

Jules  Cambon 
Kiderlen 


Proces-verbal  by  which  the  Governments  of  France  and  Germany 
mutually  express  their  regrets  for  the  acts  occurring  at  Casablanca, 
which  were  charged  against  their  respective  agents  by  the  Permanent 
Court  of  Arbitration  on  May  22,  ipop. — Signed  at  Berlin,  May  2g, 
igog} 

Whereas  the  Government  of  the  Republic  and  the  Imperial  Gov- 
ernment agreed,  on  November  10,  last,-  to  lay  before  a tribunal  of  arbi- 
tration assembled  for  the  purpose,  all  the  questions  arising  out  of  the 
occurrences  which  took  place  at  Casablanca  on  September  25,  pre- 
ceding, and  whereas  both  Governments  undertook  to  express  mutually 
their  regret  at  the  action  of  their  officials  in  accordance  with  the  de- 
cision on  the  question  of  fact  and  of  law  which  should  be  reached  by 
the  arbitrators; 

And,  whereas  the  tribunal  of  arbitration  at  The  Hague,  on  May  22, 
1909,  recognized  and  announced  the  following: 

[Here  follow  the  findings  of  the  Hague  tribunal.] 

The  Government  of  the  French  Republic  and  the  Imperial  German 
Government  declare  therefore,  each  in  so  far  as  it  is  concerned,  that 
they  express  their  regret  for  the  conduct  for  which  their  officials  are 
blamed  in  the  award  of  the  tribunal  of  arbitration. 

Done  at  Berlin  in  duplicate. 

May  29,  1909. 


'^American  Journal  of  International  Law,  vol.  3,  p.  946.  For  the  original 
French  text,  see  Appendix,  p.  485. 

^Ante,  p.  119. 


THE  GRISBADARNA  CASE 

between 

NORWAY  and  SWEDEN 
Decided  October  23,  1909 

Syllabus 

By  a compromis  signed  on  March  14,  1908,^  Norway  and  Sweden 
agreed  to  arbitrate  the  question  of  the  maritime  boundary  between  the 
two  countries  in  so  far  as  it  had  not  been  regulated  by  the  Royal  Reso- 
lution of  March  15,  1904.^  The  arbitral  tribunal  was  called  upon  to 
decide  whether  the  boundary  was  fixed  either  in  whole  or  in  part  by 
the  boundary  treaty  of  1661,  and,  if  not,  to  fix  the  boundary  or  parts 
thereof  in  accordance  with  the  principles  of  international  law.  The 
tribunal  consisted  of  a national  from  each  of  the  two  Governments  and 
an  umpire  chosen  from  a neutral  Power.  As  finally  agreed  upon,  it 
was  composed  as  follows : J.  A.  Loeff  of  Holland,  F.  V.  N.  Beichmann 
of  Norway,  and  K.  Hj.  L.  Hammarskjbld  of  Sweden.  Only  the  last- 
named  was  a member  of  the  Permanent  Court  of  Arbitration  at  The 
Hague.  The  tribunal  held  sessions  from  August  28  to  October  18, 
1909,  in  the  course  of  which  it  visited  the  disputed  zone.  The  decision 
was  rendered  on  October  23,  1909. 

The  tribunal  found  that  the  boundary  line  had  not  been  fixed  by  the 
treaty  of  1661  beyond  a certain  point,  and  that  a portion  of  the  line 
within  that  point  was  uncertain.  The  tribunal  therefore  fixed  the 
boundary  according  to  the  principles  in  force  and  applied  by  Norway 
and  Sweden  when  the  original  boundary  treaty  was  made.  The  appli- 
cation of  these  principles  resulted  in  a line  which  gave  the  Grisbadama 
fishing  banks  to  Sweden  and  the  Skjottegrunde  to  Norway.  Such  a 
division  was  also  supported  by  the  state  of  things  which  the  tribunal 
found  had  actually  existed  for  a long  time,  especially  the  use  made  of 
the  banks  by  the  fishermen  of  the  two  countries  and  the  acts  of  posses- 
sion and  ownership  exercised  by  the  two  Governments. 


^Post,  p.  133. 


^Post,  p.  136. 


122 


THE  HAGUE  COURT  REPORTS 


AWARD  OF  THE  TRIBUNAL 

Arbitral  award  in  the  qu£Stion  of  the  delimitation  of  a certain  part 

of  the  maritime  boundary  between  Norway  and  Sweden. — The 

Hague,  October  2j,  ipop.^ 

Whereas,  by  convention  dated  March  14,  1908,^  Norway  and 
Sweden  agreed  to  submit  to  the  final  decision  of  a tribunal  of  arbi- 
tration, comprised  of  a president  who  shall  neither  be  a subject  of 
either  of  the  contracting  parties  nor  domiciled  in  either  of  the  two 
countries,  and  of  two  other  members  of  whom  one  shall  be  a Nor- 
wegian and  the  other  a Swede,  the  question  of  the  maritime  bound- 
ary between  Norway  and  Sweden  as  far  as  this  boundary  has  not 
been  determined  by  the  Royal  Resolution  of  March  15,  1904;® 

Whereas,  in  pursuance  to  said  convention,  the  two  Governments 
have  appointed  respectively  as  president  and  arbitrators: 

Mr.  J.  A.  Loeff,  Doctor  of  Law  and  Political  Sciences,  former 
Minister  of  Justice,  member  of  the  Second  Chamber  of  the  States- 
General  of  the  Netherlands; 

Mr.  F.  V.  N.  Beichmann,  President  of  the  Court  of  Appeals  of 
Trondhjem,  and 

Mr.  K.  Hj.  L.  Hammarskjold,  Doctor  of  Law,  former  Minister 
of  Justice,  former  Minister  of  Public  Worship  and  Public  Construc- 
tion, former  Envoy  Extraordinary  and  Minister  Plenipotentiary  to 
('openhagen,  fonner  President  of  the  Court  of  Appeals  of  Jon- 
koping,  former  professor  in  the  Faculty  of  Law  of  Upsal,  Governor 
of  the  Province  of  Upsal,  member  of  the  Permanent  Court  of  Ar- 
bitration ; 

Whereas,  in  accordance  with  the  provisions  of  the  convention, 
the  memorials,  counter-memorials,  and  replies  have  been  duly  ex- 
changed between  the  parties  and  communicated  to  the  arbitrators 
within  the  periods  fixed  by  the  president  of  the  tribunal ; 

Whereas,  the  two  Governments  have  respectively  appointed  as 
agents,  to  wit : 

The  Government  of  Norway,  Mr.  Kristen  Johanssen,  attorney 
at  the  Supreme  Court  of  Norway ; and  the  Government  of  Sweden, 
Mr.  C.  O.  Montan,  former  member  of  the  Court  of  Appeals  of 
Svea,  judge  in  the  Mixed  Court  of  Alexandria; 

^American  Journal  of  International  Law,  vol.  4,  p.  226.  For  the  original 
French  text,  see  Appendix,  p.  487. 

^Post,  p.  133. 


^Post,  p.  136. 


THE  GRISBADARNA  CASE 


123 


Whereas,  it  has  been  agreed  by  Article  2 of  the  convention : 

1.  That  the  tribunal  of  arbitration  shall  determine  the  boundary 
line  in  the  waters  from  point  18  on  the  chart^  annexed  to  the  pro- 
posal of  the  Norwegian  and  Swedish  commissioners  of  August  18, 
1897,  into  the  sea  up  to  the  limit  of  the  territorial  waters ; 

2.  That  the  lines  limiting  the  zone  which  is  the  subject  of  litiga- 
tion in  consequence  of  the  conclusions  of  the  parties  and  within 
which  the  boundary-line  shall  consequently  be  established,  must  not 
be  traced  in  such  a way  as  to  comprise  either  islands,  islets,  or  reefs 
which  are  not  constantly  under  water ; 

Whereas,  it  has  likewise  been  agreed  by  Article  3 of  the  said  con- 
vention ; 

1.  That  the  tribunal  of  arbitration  shall  determine  whether  the 
boundary  line  is  to  be  considered,  either  wholly  or  in  part,  as  being 
fixed  by  the  boundary  treaty  of  1661  together  with  the  chart  thereto 
annexed,  and  in  what  manner  the  line  thus  established  should  be 
traced. 

2.  That,  as  far  as  the  boundary-line  shall  not  be  considered  as 
established  by  said  treaty  and  said  chart,  the  tribunal  shall  deter- 
mine this  boundary-line,  taking  into  account  the  circumstances  of 
fact  and  the  principles  of  international  law; 

Whereas,  the  agents  of  the  parties  have  presented  the  following 
conclusions  to  the  tribunal : 

The  agent  of  the  Norwegian  Government : 

That  the  boundary  between  Norway  and  Sweden  within  the  zone 
which  constitutes  the  object  of  the  arbitral  decision,  shall  be  deter- 
mined in  accordance  with  the  line  indicated  on  the  chart  annexed, 
under  No.  35,  to  the  memorial  presented  in  behalf  of  the  Norwegian 
Government. 

And  the  agent  of  the  Swedish  Government : 

I.  As  regards  the  preliminary  questions: 

May  it  please  the  tribunal  of  arbitration  to  declare  that  the  bound- 
ary-line  in  dispute,  as  regards  the  space  between  point  18  as  already 
fixed  on  the  chart  of  the  commissioners  of  1897,  and  point  A on  the 
chart  of  the  boundary  treaty  of  1661,  is  but  incompletely  established 
by  the  said  treaty  and  the  chart  annexed  thereto,  for  the  reason  that 
the  exact  situation  of  this  point  is  not  shown  clearly  therein,  and, 
as  regards  the  rest  of  the  space,  extending  westward  from  the  same 


^Post,  opposite  p.  140. 


124 


THE  HAGUE  COURT  REPORTS 


point  A to  the  territorial  boundary,  that  the  boundary-line  was 
not  established  at  all  by  these  documents. 

II.  As  regards  these  main  questions : 

1.  May  it  please  the  tribunal  to  be  guided  by  the  treaty  and  chart 
of  1661,  to  take  into  account  the  circumstances  of  fact  and  the  prin- 
ciples of  the  law  of  nations,  and  to  determine  the  maritime  bound- 
ary-line in  dispute  between  Sweden  and  Norway  from  point  18  as 
already  fixed,  in  such  a manner  that  in  the  first  place  the  boundary- 
line shall  be  traced  in  a straight  line  to  a point  which  constitutes 
the  middle  point  of  a straight  line,  connecting  the  northernmost  reef 
cf  the  Roskaren,  belonging  to  the  Koster  Islands,  that  is  to  say,  the 
leef  indicated  on  table  5 of  the  report  of  1906  as  being  surrounded 
with  depths  9,  10  and  10  [.fic.],  and  the  southernmost  reef  of  the 
Svatskjar,  belonging  to  the  Tisler  Islands,  and  which  is  furnished 
with  a beacon,  which  point  is  indicated  on  the  same  table  5 as  the 
point  19. 

2.  May  it  please  the  tribunal  further  to  take  account  of  the  cir- 
cumstances of  fact  and  the  principles  of  the  law  of  nations  and 
establish  the  rest  of  the  disputed  boundary  in  such  a manner  that — 

(a)  Starting  from  the  point  fixed  according  to  the  conclusions 
of  paragraph  1 and  designated  as  point  19,  the  boundary-line  shall 
be  traced  in  a straight  line  to  a point  situated  midway  on  a straight 
line  connecting  the  northernmost  of  the  reefs  indicated  under  the 
name  of  Stora  Drammen,  on  the  Swedish  side  and  the  Hejeknub 
rock,  situated  to  the  southeast  of  Heja  Island,  on  the  Norwegian 
side,  which  point  is  indicated  on  the  said  table  5 as  point  20 ; and 

(&)  Starting  from  the  point  last-mentioned,  the  boundary  shall 
be  traced  in  a straight  line  due  west  as  far  into  the  sea  as  the  mari- 
time territories  of  the  two  nations  are  supposed  to  extend ; 

Whereas,  the  line  mentioned  in  the  conclusions  of  the  Norwegian 
agent  is  traced  as  follows : 

From  point  18  as  indicated  on  the  chart  of  the  commissioners  of 
1897,  in  a straight  line  to  point  19  situated  midway  on  a line  drawn 
between  the  southernmost  reef  of  the  Svartskjar  (the  reef  which  is 
furnished  with  a beacon)  and  the  northernmost  reef  of  the  Ros- 
karen ; 

From  this  point  19  in  a straight  line  to  point  20,  situated  midway 
on  a line  drawn  between  the  southernmost  reef  of  the  Heiefluer 


THE  GRISBADARNA  CASE 


125 


(sondre  Heieflu)  and  the  northernmost  of  the  reefs  comprised  under 
the  name  of  Stora  Drammen; 

From  this  point  20  to  point  20a,  following  a perpendicular  drawn 
from  the  middle  of  the  last-mentioned  line. 

From  this  point  20a  to  point  20&,  following  a perpendicular  drawn 
from  the  middle  of  the  line  connecting  the  said  southernmost  reef 
of  the  Heieflu  with  the  southernmost  of  the  reefs  comprised  under 
the  name  of  Stora  Drammen. 

From  this  point  20&  to  point  20c,  following  a perpendicular  drawn 
from  the  middle  of  a line  connecting  the  Sondre  Heiefluer  with  the 
small  reef  situated  to  the  north  of  Klofningen  islet  near  Morholmen. 

From  this  point  20c  to  point  20d,  following  a perpendicular 
drawn  from  the  middle  of  a line  connecting  the  Midtre  Heieflu 
with  the  said  reef  to  the  north  of  Kldfningen  islet. 

From  this  point  2Qd,  following  a perpendicular  drawn  from  the 
middle  of  the  line  connecting  the  Midtre  Heieflu  with  a small  reef 
situated  west  of  the  said  Klofningen  to  point  21,  where  the  circles 
cross  which  are  drawn  around  said  reefs  with  a radius  of  4 nautical 
miles  (60  to  a degree). 

Whereas,  after  the  tribunal  had  visited  the  disputed  zone,  ex- 
amined the  documents  and  maps  which  had  been  presented  to  it, 
and  heard  the  pleas  and  replies  as  well  as  the  explanations  furnished 
it  at  its  request,  the  discussion  was  declared  terminated  at  the  ses- 
sion of  October  18,  1909 ; 

Whereas,  as  regards  the  interpretation  of  certain  expressions 
used  in  the  convention  and  regarding  which  the  two  parties  ex- 
pressed different  opinions  during  the  course  of  the  discussion, 

In  the  first  place,  the  tribunal  is  of  opinion  that  the  clause  in 
accordance  with  which  it  is  to  determine  the  boundary-line  in  the 
sea  as  far  as  the  limit  of  the  territorial  waters  has  no  other  purpose 
than  to  exclude  the  possibility  of  an  incomplete  determination, 
which  might  give  rise  to  a new  boundary  dispute  in  future ; and 

It  was  obviously  not  the  intention  of  the  parties  to  fix  in  advance 
the  terminal  point  of  the  boundary,  so  that  the  tribunal  would  have 
only  to  determine  the  direction  between  two  given  points ; 

In  the  second  place,  the  clause  in  accordance  with  which  the  lines 
bounding  the  zone  which  may  be  the  subject  of  dispute  in  conse- 
quence of  the  conclusions  of  the  parties  must  not  he  traced  in  such 


126 


THE  HAGUE  COURT  REPORTS 


a manner  as  to  comprise  either  islands,  islets,  or  reefs  which  are 
not  constantly  under  water  can  not  be  interpreted  so  as  to  imply 
that  the  islands,  islets,  and  reefs  aforementioned  ought  necessarily 
tc  be  taken  as  points  of  departure  in  the  determination  of  the 
boundary ; 

Whereas,  therefore,  in  the  two  respects  aforementioned,  the 
tribunal  preserves  full  freedom  to  pass  on  the  boundary  within  the 
limits  of  the  respective  contentions; 

Whereas,  under  the  terms  of  the  convention,  the  task  of  the 
tribunal  consists  in  determining  the  boundary  line  in  the  water  from 
the  point  indicated  as  18  on  the  chart  annexed  to  the  project  of  the 
Norwegian  and  Swedish  commissioners  of  August  18,  1897,  in  the 
sea  as  far  as  the  limit  of  the  territorial  waters; 

Whereas,  as  regards  the  question,  “whether  the  boundary-line 
should  be  considered,  either  wholly  or  in  part,  as  being  fixed  by 
the  boundary  treaty  of  1661  and  the  map  thereto  annexed,”  the 
answer  to  this  question  should  be  negative,  at  least  as  regards  the 
boundary-line  beyond  point  A on  the  aforementioned  map ; 

Whereas,  the  exact  situation  of  point  A on  this  chart  can  not  be 
determined  with  absolute  precision,  but  at  all  events  it  is  a point 
situated  between  points  19  and  20,  as  these  points  will  be  deter- 
mined hereinafter; 

Whereas,  the  parties  in  litigation  agree  as  regards  the  boundary- 
line from  point  18  on  the  chart  of  August  18,  1897,  to  point  19 
as  indicated  in  the  Swedish  conclusions; 

Whereas,  as  regards  the  boundary-line  from  the  said  point  19 
to  a point  indicated  by  20  on  the  charts  annexed  to  the  memorials, 
the  parties  likewise  agree,  except  that  they  differ  with  regard  to 
whether,  in  determining  point  20,  the  Heiefluer  or  the  Heieknub 
should  be  taken  as  a starting  point  from  the  Norwegian  side; 

Whereas,  in  this  connection,  the  parties  have  adopted,  at  least  in 
practice,  the  rule  of  making  the  division  along  the  median  line 
drawn  between  the  islands,  islets,  and  reefs  situated  on  both  sides 
and  not  constantly  submerged,  as  having  been  in  their  opinion  the 
rule  which  was  applied  on  this  side  of  point  A by  the  treaty  of 
1661; 

The  adoption  of  a rule  on  such  grounds  should,  without  regard 
to  the  question  whether  the  rule  invoked  was  really  applied  by  said 


THE  GRISBADARNA  CASE 


127 


treaty,  have  as  a logical  consequence,  in  applying  it  at  the  present 
time,  that  one  should  take  into  account  at  the  same  time  the  circum- 
stances of  fact  which  existed  at  the  time  of  the  treaty ; 

Whereas,  the  Heiefluer  are  reefs  which,  it  may  be  asserted  with 
sufficient  certainty,  did  not  immerge  from  the  water  at  the  time 
of  the  boundary  treaty  of  1661  and  consequently  they  could  not 
have  served  as  a starting  point  in  defining  a boundary ; 

Whereas,  therefore,  from  the  above-mentioned  standpoint  the 
Heieknub  should  be  preferred  to  the  Heiefluer; 

Whereas,  point  20  being  fixed,  there  remains  to  be  determined 
the  boundary  from  this  point  20  to  the  limit  of  the  territorial 
waters ; 

Whereas,  point  20  is  situated,  without  any  doubt,  beyond  point 
A as  indicated  on  the  chart  annexed  to  the  boundary  treaty  of  1661 ; 

Whereas,  Norway  has  held  the  contention,  which  for  that  matter 
has  not  been  rejected  by  Sweden,  that  from  the  sole  fact  of  the 
Peace  of  Roskilde  in  1658  the  maritime  territory  in  question  was 
divided  automatically  between  her  and  Sweden ; 

Whereas,  the  tribunal  fully  indorses  this  opinion; 

Whereas,  this  opinion  is  in  conformity  with  the  fundamental 
principles  of  the  law  of  nations,  both  ancient  and  modern,  in  accord- 
ance with  which  the  maritime  territory  is  an  essential  appurtenance 
of  land  territory,  whence  it  follows  that  at  the  time  when,  in  1658, 
the  land  territory  called  the  Bohuslan  was  ceded  to  Sweden,  the 
radius  of  maritime  territory  constituting  an  inseparable  appurte- 
nance of  this  land  territory  must  have  automatically  formed  a part 
of  this  cession; 

Whereas,  it  follows  from  this  line  of  argument  that  in  order  to 
ascertain  which  may  have  been  the  automatic  dividing  line  of  1658 
we  must  have  recourse  to  the  principles  of  law  in  force  at  that 
time; 

Whereas,  Norway  claims  that,  inside  (on  this  side)  of  the  Kos- 
ter-Tisler  line,  the  rule  of  the  boundary  documents  of  1661  having 
been  that  the  boundary  ought  to  follow  the  median  line  between 
the  islands,  islets,  and  reefs  on  both  sides,  the  same  principle  should 
be  applied  with  regard  to  the  boundary  beyond  this  line ; 

Whereas,  it  is  not  demonstrated  that  the  boundary-line  fixed  by 
the  treaty  and  traced  on  the  boundary  chart  was  based  on  this  rule, 


128 


THE  HAGUE  COURT  REPORTS 


and  there  are  some  details  and  peculiarities  in  the  line  traced  which 
even  give  rise  to  serious  doubts  in  this  regard,  and  even  if  one  ad- 
mitted the  existence  of  this  rule  in  connection  with  the  boundary- 
line fixed  by  the  treaty,  it  would  not  necessarily  follow  that  the 
same  rule  ought  to  have  been  applied  in  determining  the  boundary 
in  the  exterior  territory; 

Whereas,  in  this  connection. 

The  boundary  treaty  of  1661  and  the  chart  thereto  annexed  make 
the  boundary-line  begin  between  the  Koster  and  Tisler  Islands ; 

Whereas,  in  determining  the  boundary-line  they  went  in  a direc- 
tion from  the  sea  toward  the  coast  and  not  from  the  coast  toward 
the  sea; 

Whereas,  it  is  out  of  the  question  to  say  that  there  might  have 
been  a continuation  of  this  boundary-line  in  a seaward  direction ; 

Whereas,  consequently,  the  connecting  link  is  lacking  in  order  to 
enable  us  to  presume,  without  decisive  evidence,  that  the  same  rule 
was  applied  simultaneously  to  the  territories  situated  this  side  and 
to  those  situated  that  side  of  the  Koster-Tisler  line; 

Whereas,  moreover,  neither  the  boundary  treaty  nor  the  chart 
appertaining  thereto  mention  any  islands,  islets,  or  reefs  situated 
beyond  the  Koster-Tisler  line,  and  therefore,  in  order  to  keep  with- 
in the  probable  intent  of  these  documents  we  must  disregard  such 
islands,  islets,  and  reefs; 

Whereas,  again,  the  maritime  territory  belonging  to  a zone  of  a 
certain  width  presents  numerous  p>eculiarities  which  distinguish  it 
from  the  land  territory  and  from  the  maritime  spaces  more  or  less 
completely  surrounded  by  these  territories; 

Whereas,  furthermore,  in  the  same  connection,  the  rules  regard- 
ing maritime  territory  can  not  serve  as  a guide  in  determining  the 
boundary  between  two  contiguous  countries,  especially  as,  in  the 
present  case,  we  have  to  determine  a boundary  which  is  said  to  have 
been  automatically  traced  in  1658,  whereas  the  rules  invoked  date 
from  subsequent  centuries; 

And  it  is  the  same  way  with  the  rules  of  Norwegian  municipal 
law  concerning  the  definition  of  boundaries  between  private  proper- 
ties or  between  administrative  districts; 

Whereas,  for  all  these  reasons,  one  can  not  adopt  the  method  by 
which  Norway  has  proposed  to  define  the  boundary  from  point  20 
to  the  territorial  limit; 


THE  GRISBADARNA  CASE 


129 


Whereas,  the  rule  of  drawing  a median  line  midway  between  the 
inhabited  lands  does  not  find  sufficient  support  in  the  law  of  nations 
in  force  in  the  seventeenth  century; 

Whereas,  it  is  the  same  way  with  the  rule  of  the  thalweg  or  the 
most  important  channel,  inasmuch  as  the  documents  invoked  for 
the  purpose  do  not  demonstrate  that  this  rule  was  followed  in  the 
present  case.  And, 

Whereas,  we  shall  be  acting  much  more  in  accord  with  the  ideas 
of  the  seventeenth  century  and  with  the  notions  of  law  prevailing 
at  that  time  if  we  admit  that  the  automatic  division  of  the  territory 
in  question  must  have  taken  place  according  to  the  general  direc- 
tion of  the  land  territory  of  which  the  maritime  territory  constituted 
an  appurtenance,  and  if  we  consequently  apply  this  same  rule  at  the 
present  time  in  order  to  arrive  at  a just  and  lawful  determination 
of  the  boundary; 

Whereas,  consequently,  the  automatic  dividing  line  of  1658  should 
be  determined  (or,  what  is  exactly  the  same  thing  expressed  in 
other  words),  the  delimitation  should  be  made  to-day  by  tracing  a 
line  perpendicularly  to  the  general  direction  of  the  coast,  while  tak- 
ing into  account  the  necessity  of  indicating  the  boundary  in  a clear 
and  unmistakable  manner,  thus  facilitating  its  observation  by  the 
interested  parties  as  far  as  possible ; 

Whereas,  in  order  to  ascertain  what  is  this  direction  we  must 
take  equally  into  account  the  direction  of  the  coast  situated  on  both 
sides  of  the  boundary; 

Whereas,  the  general  direction  of  the  coast,  according  to  the  ex- 
pert and  conscientious  survey  of  the  tribunal,  swerves  about  20 
degrees  westward  from  due  north,  and  therefore  the  perpendicular 
line  should  run  toward  the  west  to  about  20  degrees  to  the  south ; 

Whereas,  the  parties  agree  in  admitting  the  great  unsuitability  of 
tracing  the  boundary-line  across  important  bars;  and 

A boundary-line  drawn  from  point  20  in  a westerly  direction  to 
19  degrees  to  the  south  would  completely  obviate  this  inconvenience, 
since  it  would  pass  just  to  the  north  of  the  Grisbadarna  and  to  the 
south  of  Skjottegrunde  and  would  also  not  cut  through  any  other 
important  bank ; and 

Consequently,  the  boundary-line  ought  to  be  traced  from  point  20 
westward  to  19  degrees  south,  so  that  it  would  pass  midway  between 


130 


THE  HAGUE  COURT  REPORTS 


the  Grisbadama  banks  on  the  one  side  and  Skjottegrunde  on  the 
other ; 

Whereas,  although  the  parties  have  not  indicated  any  marks  of 
alignment  for  a boundary-line  thus  traced  there  is  reason  to  believe 
that  it  will  not  be  impossible  to  find  such  marks ; 

Whereas,  on  the  other  hand,  we  could,  if  necessary,  avail  our- 
selves of  other  known  methods  of  marking  the  boundary; 

Whereas,  a demarkation  which  would  assign  the  Grisbadama  to 
Sweden  is  supported  by  all  of  several  circumstances  of  fact  which 
were  pointed  out  during  the  discussion  and  of  which  the  following 
are  the  principal  ones: 

(a)  The  circumstance  that  lobster  fishing  in  the  shoals  of  Gris- 
badama has  been  carried  on  for  a much  longer  time,  to  a much  larger 
extent,  and  by  a much  larger  number  of  fishermen  by  the  subjects 
of  Sweden  than  by  the  subjects  of  Norway. 

(b)  The  circumstance  that  Sweden  has  performed  various  acts 
in  the  Grisbadama  region,  especially  of  late,  owing  to  her  conviction 
that  these  regions  were  Swedish,  as,  for  instance,  the  placing  of 
beacons,  the  measurement  of  the  sea,  and  the  installation  of  a light- 
boat,  being  acts  which  involved  considerable  expense  and  in  doing 
which  she  not  only  thought  that  she  was  exercising  her  right  but 
even  more  that  she  was  performing  her  duty;  whereas  Norway, 
according  to  her  own  admission,  showed  much  less  solicitude  in 
this  region  in  these  various  regards ; 

Whereas,  as  regards  the  circumstance  of  fact  mentioned  in  para- 
graph a above,  it  is  a settled  principle  of  the  law  of  nations  that  a 
state  of  things  which  actually  exists  and  has  existed  for  a long  time 
should  be  changed  as  little  as  possible ; and 

This  rule  is  specially  applicable  in  a case  of  private  interests 
which,  if  once  neglected,  can  not  be  effectively  safeguarded  by  any 
manner  of  sacrifice  on  the  part  of  the  Government  of  which  the 
interested  parties  are  subjects;  and 

Lobster  fishing  is  much  the  most  important  fishing  on  the  Grisba- 
dama banks,  this  fishing  being  the  very  thing  that  gnves  the  banks 
their  value  as  fisheries;  and 

Without  doubt  the  Swedes  were  the  first  to  fish  lobsters  by  means 
of  the  tackle  and  craft  necessary  to  engage  in  fishing  as  far  out 
at  sea  as  the  banks  in  question  are  situated ; and 


THE  GRISBADARNA  CASE 


131 


Fishing  is,  generally  speaking,  of  more  importance  to  the  inhab- 
itants of  Koster  than  to  those  of  Hvaler,  the  latter  having,  at  least 
until  comparatively  recent  times,  engaged  rather  in  navigation  than 
fishing;  and 

From  these  various  circumstances  it  appears  so  probable  as  to 
be  almost  certain  that  the  Swedes  utilized^  the  banks  in  question 
much  earlier  and  much  more  effectively  than  the  Norwegians;  and 
The  depositions  and  declarations  of  the  witnesses  are,  generally 
speaking,  in  perfect  harmony  with  this  conclusion ; and 

The  arbitration  convention  is  likewise  in  full  accord  with  the 
same  conclusion;  and 

According  to  this  convention  there  is  a certain  connection  between 
the  enjoyment  of  the  fisheries  of  the  Grisbadarna  and  the  keeping 
up  of  the  light-boat,  and,  as  Sweden  will  be  obliged  to  keep  up  the 
light-boat  as  long  as  the  present  state  of  affairs  continues,  this  shows 
that,  according  to  the  arguments  of  this  clause,  the  principal  enjoy- 
ment thereof  is  now  due  to  Sweden; 

Whereas,  as  regards  the  circumstances  of  fact  as  mentioned 
under  h : 

As  regards  the  placing  of  beacons  and  of  a light-boat — 

The  stationing  of  a light-boat,  which  is  necessary  to  the  safety 
of  navigation  in  the  regions  of  Grisbadarna,  was  done  by  Sweden 
without  meeting  any  protest  and  even  at  the  initiative  of  Norway, 
and  likewise  a large  number  of  beacons  were  established  there  with- 
out giving  rise  to  any  protests ; and 

This  light-boat  and  these  beacons  are  always  maintained  by 
Sweden  at  her  own  expense;  and 

Norway  has  never  taken  any  measures  which  are  in  any  way 
equivalent  except  by  placing  a bell-buoy  there  at  a time  subsequent 
to  the  placing  of  the  beacons  and  for  a short  period  of  time,  it  being 
impossible  to  even  compare  the  expenses  of  setting  out  and  keeping 
up  this  buoy  with  those  connected  with  the  beacons  and  the  light- 
boat;  and 

It  is  shown  by  the  foregoing  that  Sweden  had  no  doubt  as  to  her 
rights  over  the  Grisbadarna  and  that  she  did  not  hesitate  to  incur 
the  expenses  incumbent  on  the  owner  and  possessor  of  these  banks 
even  to  the  extent  of  a considerable  sum  of  money. 

As  to  the  measurements  of  the  sea — 


132 


THE  HAGUE  COURT  REPORTS 


Sweden  took  the  first  steps,  about  thirty  years  before  the  begin- 
ning of  any  dispute,  toward  making  exact,  laborious,  and  expensive 
measurements  of  the  regions  of  Grisbadama,  while  the  measure- 
ments made  some  years  later  by  Norway  did  not  even  attain  the 
limits  of  the  Swedish  measurements.  And 

Whereas,  therefore,  there  is  no  doubt  whatever  that  the  assign- 
ment of  the  Grisbadama  banks  to  Sweden  is  in  perfect  accord  with 
the  most  important  circiunstances  of  fact ; 

Whereas,  a demarkation  assigning  the  Skjottegrunde  (which 
are  the  least  important  parts  of  the  disputed  territory)  to  Norvvay 
is  sufficiently  warranted  by  the  serious  circumstance  of  fact  that, 
although  one  must  infer  from  the  various  documents  and  testimony 
that  the  Swedish  fishermen,  as  was  stated  above,  have  carried  on 
fishing  in  the  regions  in  question  for  a longer  period,  to  a greater 
extent,  and  in  greater  numbers,  it  is  certain  on  the  other  hand  that 
the  Norwegian  fishermen  have  never  been  excluded  from  fishing 
there ; 

WTiereas,  moreover,  it  is  averred  that  the  Norwegian  fishermen 
have  almost  always  participated  in  the  lobster  fishing  on  the  Skjotte- 
grunde in  a comparatively  more  effective  manner  than  at  the  Gris- 
badama : 

Therefore 

The  tribunal  decides  and  pronounces : 

That  the  maritime  boundary  between  Norway  and  Sweden,  as 
far  as  it  was  not  determined  by  the  Royal  Resolution  of  March  15, 
1904,  is  fixed  as  follows: 

From  point  18  situated  as  indicated  on  the  chart  annexed  to  the 
project  of  the  Norwegian  and  Swedish  commissioners  of  August 
18,  1897,  a straight  line  is  traced  to  point  19,  constituting  the  middle 
l>oint  of  a straight  line  drawn  from  the  northernmost  reef  of  the 
Roskaren  to  the  southernmost  reef  of  the  Svartskjar,  the  one  which 
is  provided  with  a beacon ; 

From  point  19  thus  fixed,  a straight  line  is  traced  to  point  20, 
which  constitutes  the  middle  point  of  a straight  line  drawn  from 
the  northernmost  reef  of  the  group  of  reefs  called  Stora  Dram- 
men  to  the  Hejeknub  situated  to  the  southeast  of  Heja  Islands; 
from  point  20  a straight  line  is  drawn  in  a direction  of  west  19 
degrees  south,  which  line  passes  midway  between  the  Grisbadama 


THE  GRISBADARNA  CASE 


133 


and  the  Skjdttegrunde  south  and  extends  in  the  same  direction  until 
it  reaches  the  high  sea. 

Done  at  The  Hague,  October  23,  1909,  in  the  Palace  of  the  Per- 
manent Court  of  Arbitration. 

J.  A.  Loeff,  President 

Michiels  van  Verduynen,  Secretary  General 
Roell^  Secretary 


AGREEMENT  EOR  ARBITRATION 

Convention  between  Norway  and  Sweden  for  the  reference  to  arbitra- 
tion of  the  question  of  a certain  portion  of  the  sea-limit  between 
the  two  countries  in  connection  with  the  Grisbadarna  rocks. — 
Signed  at  Stockholm,  March  14,  igo8.^ 

His  Majesty  the  King  of  Sweden  and  His  Majesty  the  King  of  Nor- 
way, having  found  it  desirable  that  the  question  of  the  sea-limit  be- 
tween Sweden  and  Norway,  in  so  far  as  it  was  not  determined  by  the 
Resolution  of  the  15th  March,  1904,^  should  be  referred  to  arbitration, 
have  for  this  purpose  appointed  as  their  representatives : 

His  Majesty  the  King  of  Sweden : His  Minister  for  Foreign  Af- 

fairs, Eric  Birger  Trolle; 

His  Majesty  the  King  of  Norway:  His  Envoy  Extraordinary  and 
Minister  Plenipotentiary,  Paul  Benjamin  Vogt; 

Who,  after  exchanging  full  powers,  have  agreed  to  the  following 
conditions ; 

Article  1 

The  parties  pledge  themselves  to  the  extent  stated  below  to  leave  the 
settling  of  the  question  of  the  sea-limit  between  Sweden  and  Norway 
to  a tribunal  of  arbitration,  consisting  of  a president  who  is  neither 
a subject  of  nor  domiciled  in  either  of  the  two  countries,  and  of  two 
other  members : one  Swede  and  one  Norwegian.  ^The.  president  shall 
be  appointed  by  Her  Majesty  the  Queen  of  the  Netherlands,  the  other 
members  one  each  by  the  parties  concerned.  The  parties,  however, 
retain  the  right,  should  they  agree,  to  appoint  by  special  arrangement 
either  the  president  only  or  the  collective  members  of  the  tribunal. 

^British  and  Foreign  State  Papers,  vol.  102,  p.  731.  For  the  original  Swedish 
and  Norwegian  texts,  see  Appendix,  p.  496. 

^Post,  p.  136. 


134 


THE  HAGUE  COURT  REPORTS 


Representation  to  Her  Majesty  the  Queen  of  the  Netherlands,  or  the 
arbitrator  who  may  be  appointed  by  agreement,  shall  be  made  by  both 
parties  together. 

Article  2 

The  tribunal  of  arbitration  shall,  after  having  examined  the  case  of 
each  of  the  parties  and  their  respective  reasons  and  proofs,  determine 
the  boundary-line  in  the  waters  from  point  18  on  the  chart^  annexed  to 
the  Swede-Norwegian  proposal  of  the  18th  August,  1897,  into  the  sea 
up  to  the  limit  of  the  territorial  waters.  It  is  agreed  that  the  boundary- 
line of  the  zone  which  the  parties  maintain  to  be  under  discussion,  and 
for  which,  consequently,  the  limit  is  to  be  defined,  may  not  be  so  drawn 
as  to  include  islands,  islets,  or  reefs  which  are  not  perpetually  covered 
with  water. 

Article  3 

The  tribunal  of  arbitration  shall  have  power  to  determine  how  far 
the  boundary-line  shall  be  considered  to  be,  either  wholly  or  in  part, 
determined  by  the  boundary  treaty  of  1661,  together  with  the  chart 
appertaining  to  the  same,  and  how  such  boundary-line  is  to  be  traced, 
and  also,  in  so  far  as  the  boundary-line  can  not  be  considered  as  estab- 
lished by  the  treaty  and  chart  in  question,  shall  have  power  to  deter- 
mine the  same,  taking  into  account  the  circumstances  of  fact  and  the 
principles  of  international  law. 

Article  4 

Until  the  expiry  of  the  third  calendar  year  after  the  announcement 
of  the  decision  of  the  tribunal  of  arbitration,  irrespective  of  the  bound- 
ary line  fixed  by  that  decision,  fishing  may  be  carried  on  within  the 
waters  which,  according  to  Article  2,  are  the  subject  of  dispute  by  the 
subjects  of  both  countries  to  the  same  extent  as  during  the  five-year 
period  1901-1905.  In  considering  the  extent  to  which  fishing  is  carried 
on,  regard  shall  be  had  to  the  number  of  fishermen,  the  kind  of  fish, 
and  the  manner  of  catching. 

Article  5 

It  is  agreed  that  that  country  on  whose  side  of  the  eventual  boundary- 
line the  Grisbadarna  fishing  grounds  are  situated  shall  have  no  claim 
against  the  other  country  for  contribution  towards  the  expense  of  light- 
ships or  other  arrangements  on  or  in  the  neighborhood  of  such 
grounds. 


^Post,  opposite  p.  140. 


THE  GRISBADARNA  CASE 


135 


Sweden  undertakes  to  maintain  the  present  light-ship  situated  out- 
side the  territorial  limit  until  the  expiration  of  the  time  mentioned  in 
Article  4. 

Article  6 

The  president  of  the  tribunal  of  arbitration  shall  appoint  the  time 
and  place  for  the  first  meeting  of  the  tribunal  and  shall  summon  the 
other  members  to  it. 

Time  and  place  for  further  meetings  shall  be  decided  by  the  tribunal 
of  arbitration. 

Article  7 

The  official  language  to  be  used  by  the  tribunal  shall  be  English, 
French,  or  German,  as  may  be  decided  in  consultation  with  the  other 
members. 

For  petitions,  evidence,  and  directions  the  parties  may  use  the  lan- 
guage of  either  country,  the  tribunal  retaining  the  right  to  have  trans- 
lations made. 

Article  8 

With  respect  to  procedure  and  expenses,  there  shall  apply  such  por- 
tions of  the  regulations  contained  in  Articles  62  to  85  of  the  revised 
Convention  adopted  at  the  Second  Hague  Conference  of  1907  for  the 
pacific  settlement  of  international  disputes  as  may  be  applicable. 

Petitions,  rejoiners,  and  evidence  referred  to  in  Article  63  paragraph 
2,  of  the  above-mentioned  Convention,  shall  be  filed  within  a period 
to  be  determined  by  the  president  of  the  tribunal  of  arbitration,  but 
before  the  1st  March,  1909.  No  change  is  hereby  entailed  in  the  rules 
of  procedure  for  the  second  part,  especially  as  regards  the  regulations 
in  Articles  68,  72,  and  74  of  the  said  Convention. 

The  tribunal  of  arbitration  has  the  right,  when  it  is  found  necessary 
for  the  elucidation  of  the  case,  to  arrange  for  the  hearing  of  witnesses 
or  experts  in  the  presence  of  both  parties  and  to  order  the  undertaking 
in  common  of  a hydrographical  survey  of  the  waters  under  dispute. 

Article  9 

This  Convention  shall  be  ratified,  and  the  ratifications  exchanged  as 
soon  as  possible  in  Stockholm. 

In  respect  whereof  the  respective  plenipotentiaries  have  signed  this 
Convention  and  affixed  thereto  their  seals. 

Done  in  duplicate,  in  Swedish  and  Norwegian,  at  Stockholm,  on  the 
14th  March,  1908. 

(L.  S.)  Eric  Trolle 
(L.  S.)  Benjamin  Vogt 


136 


THE  HAGUE  COURT  REPORTS 


ADDITIONAL  DOCUMENTS 

His  Royal  Majesty’s  gracious  resolution  of  March  26,  1904,  with  ac- 
companying Protocol  of  March  15,  1904,  concerning  the  determina- 
tion of  the  extent  of  a certain  part  of  the  maritime  boundary  be- 
tween Sweden  and  Norway} 

In  reference  to  the  accompanying  protocol  of  the  joint  Norwegian 
and  Swedish  Council  of  State  of  March  15,  1904,  as  well  as  the  extract 
from  the  protocol  of  the  State  Council  regarding  civil  matters  for  this 
day.  His  Royal  Majesty  herewith  authorizes  the  Riksdag  to  propose 
that  the  question  of  the  extent  of  the  maritime  boundary  between 
Sweden  and  Norway,  from  point  18  mentioned  in  the  said  protocol, 
and  to  the  sea,  as  far  as  the  territorial  boundary  extends,  be  referred 
to  the  decision  of  a special  arbitral  tribunal,  in  accordance  with  the 
text  of  the  protocols. 

The  authorities  of  the  Riksdag  shall  appoint  a committee  to  conduct 
the  examination  of  the  acts ; and  with  all  Royal  grace  and  favor  His 
Royal  Majesty  remains  ever  well  disposed  to  the  Riksdag. 

In  the  absence  of  His  Majesty  my  Most  gracious  King  and  Lord, 

GUSTAF 

Hjalmar  Westring 


PROTOCOL  CONSIDERED  IN  THE  JOINT  NORWEGIAN  AND  SWEDISH  STATE 
COUNCIL  BEFORE  HIS  ROYAL  HIGHNESS  THE  CROWN  PRINCE  REGENT 
AT  THE  CASTLE  OF  CHRISTIANIA,  MARCH  15,  1904. 

Present;  His  Excellency  the  Minister  of  State  Hagerup,  his  Ex- 
cellency the  Minister  of  State  Ibsen,  his  Excellency  the  Minister  of 
State  Bostrom,  his  Excellency  the  Minister  for  Foreign  Affairs  Lager- 
heim.  State  Councilors : Kildal,  Strugstad,  Hauge,  Schoning,  Vogt, 
Mathiesen,  and  the  Swedish  State  Councilor,  Westring. 

The  Chief  of  the  Department  of  Commerce  and  Industry,  State 
Councilor  Schoning  submitted  the  following: 


The  Department  takes  the  liberty  of  presenting  considerations 
concerning  measures  anent  the  more  definite  fixation  of  national 
boundaries  in  the  waters  between  Norway  and  Sweden. 

Maritime  boundaries  between  the  two  countries  running  from 
the  interior  of  Idefjard  and  out  to  the  sea  were  fixed  in  a boun- 
dary regulation  of  October  26,  1661,  carried  out  in  accord  with  the 
peace  treaty  of  Roskilde  of  February  26/March  9,  1658,  and  of 
Copenhagen  of  March  27/June  6,  1660. 


^Translation.  For  the  original  Swedish  text,  see  Appendix,  p.  500. 


THE  GRISBADARNA  CASE 


137 


In  the  meantime  much  uncertainty  has  arisen  regarding  sev- 
eral points  of  this  boundary  line  in  view  of  the  fact  that  during 
the  long  interval  between  1661  and  1897  nothing  was  done  in  the 
matter  by  joint  survey  and  investigation.  In  1897  the  Norwegian 
Department  of  the  Interior  and  the  Swedish  Department  for  Civil 
Affairs  took  action  whereby  they  might  ascertain  the  exact  course 
of  that  section  of  the  boundary ; and  in  the  month  of  August  of 
the  same  year  two  Norwegian  and  two  Swedish  commissioners 
met  for  the  purpose  of  making  a thorough  search  of  the  records 
and  an  investigation  on  the  spot,  etc.,  and  of  their  presenting  a 
proposition  for  the  fixation  and  tracing  upon  charts  of  the  bound- 
ary line  between  Norway  and  Sweden,  from  the  interior  of 
Idefjard  and  out  into  the  sea. 

Bureau  Secretary  Hroar  Olsen  and  Commander  A.  Rieck  were 
the  Norwegian  commissioners;  Commander  E.  Oldberg  and  Judge 
H.  Westring  were  the  Swedish  commissioners. 

As  the  result  of  their  labors  and  investigations,  the  commis- 
sioners presented  on  August  18,  1897,  the  “proposition  of  the 
Royal  Swedish  and  Norwegian  Commission  for  and  description 
of  the  maritime  boundary  between  Norway  and  Sweden  from  the 
interior  of  Idefjard  to  the  sea.” 

From  this  it  appears,  as  witnessed  by  all  four  commissioners, 
that  they  had  reached  a unanimous  conclusion  regarding  the 
boundary  line  from  the  interior  of  Idefjard  to  a point  between 
the  Jyete  buoy  (Norwegian)  and  a small  Island,  northwest  of 
Narro  Hellso  (Swedish),  which  point  is  numbered  18  on  a draft 
chart  accompanying  the  proposition,  so  that  Helleholmen  is  trans- 
ferred to  Sweden,  and  Knivsoarna  to  Norway. 

Regarding  the  extent  of  the  boundary  line  from  the  said  point 
18  even  to  the  sea,  no  agreement  was  arrived  at  by  the  commis- 
sion. The  Norwegian  and  the  Swedish  members  each  submitted 
their  respective  proposition  in  reference  to  that  part,  and  accord- 
ing to  which  Grisbadarna  together  with  some  shallows  and 
ground  to  the  north  of  Koster  should  go  respectively  to  Norway 
or  to  Sweden. 

The  commissioners’  propositions^  together  with  two  charts  in 
reference  thereto  are  subjoined.* 

The  Department  is  of  opinion  that  the  line  proposed  by  the 
Norwegian  and  Swedish  commission,  from  the  interior  of  Idefjard 
to  point  18,  as  indicated  on  the  accompanying  map,  should  be  re- 
garded as  the  correct  boundary  line. 

Inasmuch  as  with  regard  to  the  more  detailed  description  of 
this  line,  reference  is  made  to  the  proposition  of  the  commission- 
ers, the  Department  permits  itself  to  recommend  that  YoUr 
Majesty  approve  that  line  as  the  correct  boundary  between  the  two 
kingdoms. 

Provided  that  Your  Majesty  be  pleased  to  decide  according  to 
this  recommendation,  the  Department  assumes  that  subsequently 


^Post,  p.  138. 


^Post,  opposite  p.  140. 


138 


THE  HAGUE  COURT  REPORTS 


the  royal  proclamation  with  regard  to  the  boundary  line  agreed 
upon,  will  be  issued  by  the  State  Council  of  each  of  the  two  king- 
doms. 

It  is  furthermore  to  be  observed  that  it  would  be  of  importance 
to  demarkate  as  soon  as  possible  this  part  of  the  boundary  line. 
It  seems  most  expedient  that  a commissioner  of  each  kingdom  be 
appointed  to  imdertake  this  demarkation,  and  the  Department 
recommends  therefore  that  Your  Majesty  approve  this  proposal  to 
the  effect  that  the  State  Council  of  each  of  the  two  kingdoms  shall 
designate  respectively  one  Norwegian  and  one  Swedish  commis- 
sioner. 

As  hereinbefore  stated,  the  Norwegian  and  Swedish  commis- 
sioners have  not  been  able  to  agree  ujx)n  the  matter  regarding  the 
rectification  of  the  extent  of  the  boundary  from  the  said  point  IS 
to  the  sea. 

The  following  is  a more  detailed  presentation  of  the  views  held 
by  the  Norwegian  and  Swedish  parties  with  regard  to  the  disputed 
boundary  line. 

Norwegian  View 

From  point  18,  between  the  buoy  Jyete  and  a small  island 
northwest  of  Narra  Hellso,  the  line  should  run  straight  to  the 
open  sea  through  the  center  of  a straight  line  from  the  southern 
extremity  of  the  southernmost  Norwegian  Tislaron,  Kloveren, 
to  the  northern  extremity  of  the  northern  Koster  island  (Swed- 
ish), so  that  the  boundary  line  run  by  Batshake,  and  all  islands 
situated  to  the  north  of  this  line,  including  Grisbadama,  remain 
Norwegian. 

This  line  is  traced  in  red  color  on  the  chart  of  the  commission- 
ers, and  said  point  between  Kloveren  and  Koster  island  is  indi- 
cated as  point  19. 

Swedish  View 

From  point  18,  the  boundary  line  should  be  drawn  in  a straight 
line  to  the  open  sea,  through  a point  about  300  meters  north  of 
Rodkars  Nordgrund  and  therefore  about  midway  between  Gris- 
badama and  Skiittegrund,  so  that  all  islands  to  the  south  out- 
side of  this  line,  water  and  land,  including  Grisbadama,  remain 
Swedish. 

Upon  the  chart  of  the  commissioners  this  line  is  traced  in  yellow 
color,  and  the  said  point  north  of  Rodkars  Nordgrund  marked 
point  19. 

This  Department  permits  itself  respectfully  to  propose  that  the 
question  of  the  disputed  boundary  line  to  the  arbitral  decision  of  a 
special  tribunal,  after  the  consent  thereto  shall  have  been  given  by 
the  representatives  of  both  kingdoms,  and  that  the  following  pro- 
cedure be  observ’ed : 

In  each  of  the  two  kingdoms,  the  respective  State  Council  shall 
appoint  two  judges. 


THE  GRISRADARNA  CASE 


139 


The  judges  thus  designated  shall  mutually  agree  upon  a fifth 
judge  who  shall  at  the  same  time  act  as  president  of  the  tribunal. 
In  case  of  a tie,  the  designation  of  the  fifth  member  shall  be  re- 
ferred to  such  foreign  chief  of  State  as  Your  Majesty  might  re- 
quest to  that  end. 

The  rules  of  procedure  of  the  tribunal,  the  deliberations  as  well 
as  the  place  where  the  tribunal  shall  sit  to  be  adopted  by  the 
judges  themselves. 

The  duly  announced  judicial  decision  regarding  the  disputed 
boundary  line  shall  be  binding  upon  both  parties. 

Each  kingdom  shall  meet  the  expenses  of  its  own  representa- 
tives, and  the  expenses  of  the  fifth  member,  etc.,  shall  be  met  in 
equal  shares  by  the  two  kingdoms. 

In  accordance  with  the  foregoing,  the  Department  takes  the  liberty 
of  submitting  most  respectfully : 

That  Your  Majesty  may  most  graciously  resolve: 

(1)  That  the  boundary  line  between  Norway  and  Sweden  as  pro- 
posed by  the  joint  Norwegian  and  Swedish  commission  of  1897,  from 
the  upper  end  of  Idefjard  to  point  18  as  shown  on  the  two  accompany- 
ing charts^  be  approved  according  to  the  proposal  of  the  commis- 
sioners ; 

(2)  That  the  demarkation  of  the  said  boundary  line  shall  be  under- 
taken by  commissioners  chosen  for  the  purpose,  one  from  each  king- 
dom ; 

(3)  That  questions  concerning  boundary  lines  between  Norway  and 
Sweden,  from  the  aforesaid  point  18  to  the  sea,  as  far  as  the  terri- 
torial boundary  extends  shall  be  referred  to  the  decision  of  a special 
arbitral  tribunal,  in  accordance  with  what  is  hereinbefore  stated,  pro- 
vided the  representatives  of  the  two  kingdoms  consent  thereto. 

The  Swedish  members  of  the  State  Council  have  concurred  in  what 
the  present  reporter  has  hereinbefore  submitted  as  to  the  approval 
of  the  boundary  lines  proposed  by  the  Swedish  and  Norwegian  com- 
missioners, from  the  upper  end  of  Idefjard  to  the  said  point  18,  in- 
cluding the  demarkation  of  the  boundary  line. 

Regarding  the  section  of  the  boundary  line  from  point  18  to  the  sea 
as  far  as  the  territorial  boundary,  those  members  declare  that  in  sev- 
eral statements  that  have  been  sent  in  regarding  this  matter,  sugges- 
tions have  been  made  regarding  the  boundary  according  to  which  this 
line  would  in  part  be  moved  still  further  north  than  proposed  by  the 
Swedish  commissioners.  Expressing  in  regard  to  this  the  opinion  that 
the  proposal  to  submit  to  a special  arbitral  tribunal  the  decision  as  to 


^Post,  opposite  p.  140. 


140 


THE  HAGUE  COURT  REPORTS 


the  question  of  the  position  of  the  boundary  line  in  this  part,  that  this 
implied  that  both  parties  should  have  the  opportunity  to  submit  to  the 
tribunal  the  demands  in  regard  thereto  which  they  might  find  neces- 
sary, these  members  agree  to  the  proposition  of  the  reporter  even  as 
to  this  part  of  the  question. 

The  Norwegian  members  had  no  objection  to  make  to  the  foregoing 
statement,  which  corresponded  to  what  had  been  already  taken  for 
granted  by  the  Norwegian  side. 

In  accordance  with  what  the  members  of  the  Council  of  State  thus 
advise,  may  it  please  Your  Royal  Majesty  the  Crown  Prince  Regent 
to  approve  the  proposal  set  forth  by  the  chief  of  the  Norwegian  De- 
partment of  Commerce  and  Industry. 


140 


THE  HAGUE  COURT  REPORTS 


the  question  of  the  position  of  the  boundary  line  in  this  part,  that  this 
implied  that  both  parties  should  have  the  opportunity  to  submit  to  the 
tribunal  the  demands  in  regard  thereto  which  they  might  find  neces- 
sary, these  members  agree  to  the  proposition  of  the  reporter  even  as 
to  this  part  of  the  question. 

The  Norwegian  members  had  no  objection  to  make  to  the  foregoing 
statement,  which  corresponded  to  what  had  been  already  taken  for 
granted  by  the  Norwegian  side. 

In  accordance  with  what  the  members  of  the  Council  of  State  thus 
advise,  may  it  please  Your  Royal  Majesty  the  Crown  Prince  Regent 
to  approve  the  proposal  set  forth  by  the  chief  of  the  Norwegian  De- 
partment of  Commerce  and  Industry. 


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THE  NORKtS  PETERS  CO.,  WASHlSCTOft,  D.  C. 


THE  NORTH  ATLANTIC  COAST 
FISHERIES  CASE 

between 

GREAT  BRITAIN  and  THE  UNITED  STATES 
Decided  September  7,  1910 
Syllabus 

The  treaty  of  peace  of  1783  between  Great  Britain  and  the  United 
States  continued  to  inhabitants  of  the  United  States  the  privileges 
theretofore  enjoyed  in  common  with  British  subjects  in  the  fisheries 
off  Newfoundland,  Labrador,  and  other  parts  of  the  North  Atlantic 
Coast. 

Great  Britain  regarded  this  treaty  as  abrogated  by  the  war  of  1812, 
whereas  the  United  States  considered  it  as  only  suspended  by  and 
during  the  war.  However,  on  October  20,  1818,  a new  treaty  was 
signed  with  a view  of  defining  the  rights  of  inhabitants  of  the  United 
States  to  take  fish  in  certain  parts  of  British  north  Atlantic  coast 
waters,  and  to  enter  bays  and  harbors  for  the  purpose  of  repairs,  etc. 
Article  1 reads  as  follows : 

Whereas  differences  have  arisen  respecting  the  liberty  claimed  by 
the  United  States  for  the  inhabitants  thereof,  to  take,  dry,  and  cure 
fish  on  certain  coasts,  bays,  harbors,  and  creeks  of  His  Britannic 
Majesty’s  dominions  in  America,  it  is  agreed  between  the  high  con- 
tracting Parties,  that  the  inhabitants  of  the  said  United  States  shall 
have  forever,  in  common  with  the  subjects  of  His  Britannic  Majesty, 
the  liberty  to  take  fish  of  every  kind  on  that  part  of  the  southern  coast 
of  Newfoundland  which  extends  from  Cape  Ray  to  the  Rameau 
Islands,  on  the  western  and  northern  coast  of  Newfoundland,  from 
the  said  Cape  Ray  to  the  Quirpon  Islands  on  the  shores  of  the  Magda- 
len Islands,  and  also  on  the  coasts,  bays,  harbors,  and  creeks  from 
Mount  Joly  on  the  southern  coast  of  Labrador,  to  and  through  the 
Straits  of  Belleisle  and  thence  northwardly  indefinitely  along  the  coast, 
without  prejudice,  however,  to  any  of  the  exclusive  rights  of  the  Hud- 
son Bay  Company:  And  that  the  American  fishermen  shall  also  have 
liberty  forever,  to  dry  and  cure  fish  in  any  of  the  unsettled  bays,  har- 
bors, and  creeks  of  the  southern  part  of  the  coast  of  Newfoundland 
hereabove  described,  and  of  the  coast  of  Labrador ; but  so  soon  as  the 
same,  or  any  portion  thereof,  shall  be  settled,  it  shall  not  be  lawful  fdr 
the  said  fishermen  to  dry  or  cure  fish  at  such  portion  so  settled,  with- 


142 


THE  HAGUE  COURT  REPORTS 


out  previous  agreement  for  such  purpose  with  the  inhabitants,  pro- 
prietors, or  possessors  of  the  ground.  And  the  United  States  hereby 
renounce  forever,  any  liberty  heretofore  enjoyed  or  claimed  by  the 
inhabitants  thereof,  to  take,  dry,  or  cure  fish  on,  or  within  three  marine 
miles  of  any  of  the  coasts,  bays,  creeks,  or  harbors  of  His  Britannic 
Majesty’s  dominions  in  America  not  included  within  the  above-men- 
tioned limits ; Provided,  however,  that  the  American  fishermen  shall 
be  admitted  to  enter  such  bays  or  harbors  for  the  purpose  of  shelter 
and  of  repairing  damages  therein,  of  purchasing  wood,  and  of  obtain- 
ing water,  and  for  no  other  purpose  whatever.  But  they  shall  be 
under  such  restrictions  as  may  be  necessary  to  prevent  their  taking, 
drying  or  curing  fish  therein,  or  in  any  other  manner  whatever  abusing 
the  privileges  hereby  reserved  to  them. 

Diflferences  arose  as  to  the  scope  and  meaning  of  this  article  and  of 
the  rights  and  liberties  referred  to  in  the  article  or  claimed  on  behalf 
of  the  inhabitants  of  the  United  States.  Beginning  with  the  seizure  of 
American  fishing  vessels  in  1821-2,  the  controversy  over  fishing  rights 
continued  in  more  or  less  menacing  form  until  1905  when,  on  account 
of  the  severe  restrictive  legislation  by  Newfoundland,  affairs  reached 
a critical  stage.  Negotiations  were  begun  looking  to  a settlement,  and 
in  1906  a modus  vivendi^  covering  the  fishing  season  of  1906-7  was 
agreed  upon  by  the  two  Governments  for  the  purpose  of  allaying  fric- 
tion until  some  definite  adjustment  could  be  reached.  The  modus  was 
reneAved  for  the  fishing  seasons  of  1907-8,^  1908-9'*  and  1909-10,^ 
and  on  January  27,  1909,  a compromise  was  signed  submitting  the  con- 
troversy to  the  Permanent  Court  of  Arbitration  at  The  Hague.  A 
tribunal  was  created  composed  of  the  following  members  of  the  panel 
of  the  court : Heinrich  Lammasch,  of  Austria-Hungary ; A.  F.  de 
Savornin  Lohman,  of  Holland;  George  Gray,  of  the  United  States; 
Luis  M.  Drago,  of  Argentine;  and  Sir  Charles  Fitzpatrick,  of  Great 
Britain.  The  sessions  of  the  tribunal  began  June  1,  1910,  and  ended 
August  12,  1910;  the  decision  was  rendered  September  7,  1910. 

There  were  seven  questions  submitted  to  the  tribunal. 

First.  Great  Britain  contended  for  the  right,  directly  or  indirectly 
through  Canada  or  Newfoundland,  to  make  regulations  applicable  to 
American  fishermen  in  treaty  waters  without  the  consent  of  the 
United  States,  “in  respect  of  (1)  the  hours,  days,  or  seasons  when 
fish  may  be  taken  on  the  treaty  coasts;  (2)  the  method,  means  and  im- 
plements to  be  used  in  the  taking  of  fish  or  in  the  carrying  on  of  fish- 
ing operations  on  such  coasts;  (3)  any  other  matters  of  a similar  char- 
acter provided  such  regulations  were  “reasonable,  as  being,  for  in- 
stance, appropriate  or  necessary  for  the  protection  and  preservation  of 
"such  fisheries;  desirable  on  grounds  of  public  order  and  morals; 

^Post,  p.  208.  ^Post,  p.  212.  ^Post,  p.  214.  *Post,  p.  220.  ^Post,  p.  147. 


THE  NORTH  ATLANTIC  COAST  FISHERIES  CASE  143 

equitable  and  fair  as  between  local  fishermen  and  the  inhabitants  of 
the  United  States.” 

The  United  States,  on  the  other  hand,  denied  the  right  of  Great 
Britain  to  make  such  regulations  “unless  their  appropriateness,  neces- 
sity, reasonableness,  and  fairness  be  determined  by  the  United  States 
and  Great  Britain  by  common  accord  and  the  United  States  concurs 
in  their  enforcement.” 

The  tribunal  in  its  decision  on  this  question  affirmed  the  right  of 
, Great  Britain  “to  make  regulations  without  the  consent  of  the  United 
States”  but  held  that  “such  regulations  must  be  made  bona  fide  and 
must  not  be  in  violation  of  the  said  treaty;”  and  that  “regulations 
which  are  (1)  appropriate  or  necessary  for  the  preservation  of  such 
fisheries,  or  (2)  desirable  or  necessary  on  grounds  of  public  order  and 
morals  without  unnecessarily  interfering  with  the  fishery  itself,  and 
in  both  cases  equitable  and  fair  as  between  local  and  American  fisher- 
men, and  not  so  framed  as  to  give  an  advantage  to  the  former  over  the 
latter  class,  are  not  inconsistent  with  the  obligation  to  execute  the  treaty 
in  good  faith,  and  are  therefore  not  in  violation  of  the  treaty.” 

The  award  thus  far  is  in  favor  of  Great  Britain,  but  the  tribunal 
held  further  that,  if  the  reasonableness  of  the  regulation  is  contested 
by  the  United  States,  Great  Britain  is  not  to  be  the  judge  of  what  is 
or  what  is  not  reasonable,  but  that  it  must  be  decided  not  by  either 
of  the  parties  but  by  an  impartial  authority.  To  this  end  the  tribunal 
recommended  certain  rules  and  methods  of  procedure  in  case  any  reg- 
ulation was  contested,  the  important  feature  being  that  any  such  con- 
tested regulation,  before  becoming  effective,  should  be  referred  to  a 
permanent  mixed  fishery  commission,  whose  membership,  procedure 
and  authority  the  tribunal  also  defined.  In  proposing  this  recommen- 
dation, accepted  by  the  parties  in  controversy,  the  tribunal  relied  upon 
Article  4 of  the  special  agreement,  which  was  considered  both  by  the 
tribunal  and  by  Great  Britain  and  the  United  States,  as  in  the  nature 
of  a permanent  treaty  of  unlimited  duration  for  the  settlement  of  any 
disputes  that  might  arise  between  the  two  countries  under  the  conven- 
tion of  1818.  This  article  is  as  follows : 

The  tribunal  shall  recommend  for  the  consideration  of  the  high  con- 
tracting Parties  rules  and  a method  of  procedure  under  which  all  ques- 
tions which  may  arise  in  the  future  regarding  the  exercise  of  the 
liberties  above  referred  to  may  be  determined  in  accordance  with  the 
principles  laid  down  in  the  award.  If  the  high  contracting  Parties 
shall  not  adopt  the  rules  and  method  of  procedure  so  recommended,  or 
if  they  shall  not,  subsequently  to  the  delivery  of  the  award,  agree  upon 
such  rules  and  method,  then  any  differences  which  may  arise  in  the 
future  between  the  high  contracting  Parties  relating  to  the  interpreta- 
tion of  the  treaty  of  1818  or  to  the  effect  and  application  of  the  award 
of  the  tribunal  shall  be  referred  informally  to  the  Permanent  Court  at 
The  Hague  for  decision  by  the  summary  procedure  provided  in  Chap- 
ter IV  of  the  Hague  Convention  of  the  18th  October,  1907.^ 


^Post,  p.  151. 


144 


THE  HAGUE  COURT  REPORTS 


Second.  This  was  as  to  the  right  of  the  inhabitants  of  the  United 
States,  while  exercising  the  liberties  referred  to,  to  employ  as  members 
of  the  fishing  crews  of  their  vessels  persons  not  inhabitants  of  the 
United  States. 

The  United  States  contended  (1)  that  the  liberty  assured  to  their 
inhabitants  by  the  treaty  plainly  includes  the  right  to  use  all  the  means 
customary  or  appropriate  for  fishing  upon  the  sea,  not  only  ships  and 
nets  and  boats,  but  crews  to  handle  the  ships,  the  nets  and  the  boats; 
(2)  that  no  right  to  control  or  limit  the  means  which  these  inhabitants 
shall  use  in  fishing  can  be  admitted  unless  it  is  provided  in  the  terms 
of  the  treaty  and  no  right  to  question  the  nationality  or  inhabitancy  of 
the  crews  employed  is  contained  in  the  terms  of  the  treaty. 

Great  Britain,  on  the  other  hand,  contended  (1)  that  the  treaty  con- 
fers the  liberty  to  inhabitants  of  the  United  States  exclusively;  (2) 
that  the  Governments  of  Great  Britain,  Canada  or  Newfoundland  may, 
without  infraction  of  the  treaty,  prohibit  persons  from  engaging  as 
fishermen  in  American  vessels. 

The  tribunal  held  in  favor  of  the  United  States  but  expressed  the 
view  that  non-inhabitants  employed  as  members  of  crews  of  American 
fishing  vessels  derive  no  rights  from  the  treaty,  but  only  from  their 
employer. 

Third.  The  United  States  contended  that  its  inhabitants  were  not, 
without  its  consent,  to  be  subjected  “to  the  requirements  of  entry  or 
report  at  custom-houses  or  the  payment  of  light  or  harbor  dues,  or  to 
any  other  similar  requirement  or  condition  or  exaction.” 

The  United  States  stated  in  its  case  that  American  fishing  vessels 
exercising  their  treaty  rights  might  properly  be  called  upon  to  make 
known  their  presence  and  exhibit  their  credentials  by  a report  at  cus- 
toms, but  on  the  other  hand,  the  United  States  denied  that  such  vessels 
could  be  subjected  to  the  customs  regulations  imposed  upon  other  ves- 
sels, or  required  to  pay  light,  harbor  or  other  dues  not  imposed  upon 
local  fishing  vessels. 

The  tribunal  held  that  the  duty  to  report  is  not  unreasonable,  if  the 
report  may  be  made  conveniently  either  in  person  or  by  telegraph ; 
otherwise  the  vessel  need  not  report.  It  was  also  held  that  “the  exer- 
cise of  the  fishing  liberty  by  the  inhabitants  of  the  United  States 
should  not  be  subjected  to  the  purely  commercial  formalities  of  re- 
port, entry  and  clearance  at  a custom-house,  nor  to  light,  harbor  or 
other  dues  not  imposed  upon  Newfoundland  fishermen.” 

Fourth.  This  question  was  as  to  the  right  to  require  payment  of 
light  and  harbor  dues  by  fishermen  of  the  United  States,  or  to  report 
at  custom-houses,  and  similar  requirements  when  resorting  to  certain 
bays  and  harbors  for  shelter,  wood,  water,  etc. 

The  treaty  provided  that  American  fishermen  might  enter  bays  or 
harbors  on  the  non-treaty  coast  “for  the  purpose  of  shelter  and  of  re- 
pairing damages  therein,  of  purchasing  wood  and  of  obtaining  water, 
and  for  no  other  purpose  whatever.” 

Great  Britain  contended  that  vessels,  seeking  these  non-treaty  ports 


THE  NORTH  ATLANTIC  COAST  FISHERIES  CASE 


145 


were  to  be  treated  as  ordinary  vessels,  subject  to  local  ordinances  and 
regulations,  whereas  the  United  States  maintained  that  the  ports  were 
to  be  treated  as  ports  of  refuge  and  that  subjection  of  fishing  vessels 
to  the  prerequisite  of  entering  and  reporting  at  custom-houses,  or  of 
paying  light,  harbor  or  other  dues  would  unjustly  impair  and  limit  the 
privileges  which  the  clause  meant  to  concede. 

The  tribunal  held  that  the  treaty  provision  was  an  exercise,  in  large 
measure,  of  the  “duties  of  hospitality  and  humanity  which  all  civilized 
nations  impose  upon  themselves,”  and  was  not  dependent  upon  the 
payment  of  dues  or  other  similar  requirements,  although  the  privilege 
should  not  be  abused. 

Fifth.  By  the  convention  of  1818  the  United  States  renounced  the 
right  “to  take,  dry,  or  cure  fish  on,  or  within  three  marine  miles  of  any 
of  the  coasts,  bays,  creeks  or  harbors  of  His  Britannic  Majesty’s  do- 
minions in  America”  not  included  within  the  limits  specified  by  the 
treaty.  The  fifth  question  asked  “from  where  must  be  measured  the 
‘three  marine  miles  of  any  of  the  coasts,  bays,  creeks,  or  harbors’  re- 
ferred to  in  the  said  article?” 

Great  Britain  contended  that  the  United  States  had  renounced  the 
right  to  fish  within  all  bays  and  within  three  miles  thereof,  that  is,  that 
the  word  “bays”  in  the  treaty  was  used  in  both  a geographical  and 
territorial  sense,  thereby  excluding  American  fishermen  from  all  bodies 
of  water  on  the  non-treaty  coast  known  as  bays  on  the  charts  of  the 
period.  On  the  contrary  the  United  States  maintained  that  the  word 
“bays”  was  used  in  the  territorial  sense,  and  therefore  limited  to  small 
bays,  and  that  it  had  renounced  merely  the  right  to  fish  within  such 
bays  as  formed  part  of  His  Majesty’s  dominions,  that  is  to  say,  terri- 
torial bays;  that  only  such  bays  whose  entrance  was  less  than  double 
the  marine  league  were  renounced,  and  that  in  such  cases  the  three 
marine  miles  were  to  be  measured  from  a line  drawn  across  the  bays 
where  they  were  six  miles  or  less  in  width. 

The  tribunal  decided  in  favor  of  the  British  contention  that  the  word 
“bays”  must  be  interpreted  as  applying  to  geographical  bays,  and  held 
that  “in  case  of  bays,  the  three  marine  miles  are  to  be  measured  from 
a straight  line  drawn  across  the  body  of  water  at  the  place  where  it 
ceases  to  have  the  configuration  and  characteristics  of  a bay,”  but  that 
“at  all  other  places  the  three  marine  miles  are  to  be  measured  follow- 
ing the  sinuosities  of  the  coast.”  That  is,  a body  of  water,  geographic- 
ally called  a bay,  may  cease  to  have  “the  configuration  and  character- 
istic of  a bay”  and  at  this  point  the  line  is  to  be  drawn. 

The  tribunal,  however,  in  view  of  the  difficulty  in  the  practical  appli- 
cation of  the  rule  laid  down,  recommended  a procedure  to  determine 
the  limits  of  particular  bays,  which  were  specified,  and  provided  also 
that  as  to  bays  not  specified  “the  limits  of  exclusion  should  be  three 
miles  seaward  from  a straight  line  across  the  bay  at  the  part  nearest 
the  entrance  at  the  first  point  where  the  width  does  not  exceed  ten 
miles.” 

The  decision  was  not  unanimous,  Dr.  Drago  submitting  a dissenting 


146 


THE  HAGUE  COURT  REPORTS 


opinion,  in  which  he  maintained  that  there  was  no  certain  rule  laid 
down  for  the  guidance  of  the  parties,  and  that  the  recommendation 
of  a special  series  of  lines,  however  practical  they  might  be  supposed 
to  be,  was  beyond  the  scope  of  the  award  and  could  not  be  adopted 
without  a new  treaty  being  entered  into  by  the  parties. 

Sixth.  The  United  States  contended  that  the  inhabitants  of  the 
United  States  have  the  liberty,  under  Article  1 of  the  treaty,  of  taking 
fish  in  the  bays,  harbors,  and  creeks  on  what  was  known  as  the  treaty 
coast,  that  is,  on  that  part  of  the  southern  coast  of  Newfoundland 
which  extends  from  Cape  Ray  to  Rameau  Islands,  or  on  the  western 
and  northern  coasts  of  Newfoundland  from  Cape  Ray  to  Quirpon 
Islands  and  on  the  Magdalen  Islands.  Great  Britain  contended  that 
they  had  no  such  liberty,  and  endeavored  to  show  that  evidence  could 
be  found  in  the  correspondence  submitted  to  the  tribunal  indicating 
an  intention  to  exclude  Americans  from  Newfoundland  bays  on  the 
treaty  coast,  and  that  no  value  would  have  been  attached  at  that  time 
by  the  United  States  Government  to  the  liberty  of  fishing  in  such  bays 
because  there  was  no  cod  fishery  there  as  there  was  in  the  bays  of 
Labrador. 

The  tribunal  decided  in  favor  of  the  United  States. 

Serrcnth.  This  was  whether  vessels  belonging  to  inhabitants  of  the 
United  States  resorting  to  the  treaty  coasts  for  the  purposes  of  exer- 
cising the  liberties  referred  to,  were  entitled  to  have  the  commercial 
privileges  which  were  accorded  by  agreement  or  otherwise  to  trading 
vessels  of  the  United  States  generally.  The  tribunal  held  that  there 
was  nothing  in  the  treaty  provisions  to  disentitle  them,  provided  the 
treaty  liberty  of  fishing  and  the  commercial  privileges  were  not  exer- 
cised concurrently. 

The  tribunal  decided  in  favor  of  the  United  States. 


AWARD  OF  THE  TRIBUNAL 

Award  of  the  tribunal  of  arbitration  in  the  question  relating  to  the 
north  Atlantic  coast  fisheries. — The  Hague,  September  j,  igio} 

Preamble 

Whereas  a special  agreement  between  the  United  States  of 
America  and  Great  Britain,  signed  at  Washington  the  27th  January, 
1909,*  and  confirmed  by  interchange  of  notes  dated  the  4th  March, 
1909,*  was  concluded  in  conformity  with  the  provisions  of  the  gen- 
eral arbitration  treaty  between  the  United  States  of  America  and 


* Official  report,  p.  104.  *Post,  p.  147. 


^Post,  p.  215. 


THE  NORTH  ATLANTIC  COAST  FISHERIES  CASE 


147 


Great  Britain,  signed  the  4th  April,  1908,  and  ratified  the  4th  June, 
1908; 

And  whereas  the  said  special  agreement  for  the  submission  of 
questions  relating  to  fisheries  on  the  North  Atlantic  coast  under 
the  general  treaty  of  arbitration  concluded  between  the  United 
States  and  Great  Britain  on  the  4th  day  of  April,  1908,  is  as 
follows 

Article  1 

Whereas  by  Article  1 of  the  convention  signed  at  London  on  the 
20th  day  of  October,  1818,  between  Great  Britain  and  the  United 
States,  it  was  agreed  as  follows: 

Whereas  differences  have  arisen  respecting  the  liberty  claimed  by 
the  United  States  for  the  inhabitants  thereof,  to  take,  dry  and  cure 
fish  on  certain  coasts,  bays,  harbors  and  creeks  of  His  Britannic 
Majesty’s  dominions  in  America,  it  is  agreed  between  the  high  con- 
tracting Parties,  that  the  inhabitants  of  the  said  United  States  shall 
have  forever,  in  common  with  the  subjects  of  His  Britannic  Maj- 
esty, the  liberty  to  take  fish  of  every  kind  on  that  part  of  the  south- 
ern coast  of  Newfoundland  which  extends  from  Cape  Ray  to  the 
Rameau  Islands,  on  the  western  and  northern  coast  of  Newfound- 
land, from  the  said  Cape  Ray  to  the  Quirpon  Islands,  on  the  shores 
of  Magdalen  Islands,  and  also  on  the  coasts,  bays,  harbors,  and 
creeks  from  Mount  Joly  on  the  southern  coast  of  Labrador,  to 
and  through  the  Straits  of  Belleisle  and  thence  northwardly  in- 
definitely along  the  coast,  without  prejudice,  however,  to  any  of 
the  exclusive  rights  of  the  Hudson  Bay  Company;  and  that  the 
American  fishermen  shall  also  have  liberty  forever,  to  dry  and  cure 
fish  in  any  of  the  unsettled  bays,  harbors  and  creeks  of  the  southern 
part  of  the  coast  of  Newfoundland  hereabove  described,  and  of 
the  coast  of  Labrador;  but  so  soon  as  the  same,  or  any  portion 
thereof,  shall  be  settled,  it  shall  not  be  lawful  for  the  said  fishermen 
to  dry  or  cure  fish  at  such  portion  so  settled,  without  previous 
agreement  for  such  purpose  with  the  inhabitants,  proprietors,  or 
possessors  of  the  ground. — And  the  United  States  hereby  renounce 
forever,  any  liberty  heretofore  enjoyed  or  claimed  by  the  inhabi- 
tants thereof,  to  take,  dry,  or  cure  fish  on,  or  within  three  marine 
miles  of  any  of  the  coasts,  bays,  creeks,  or  harbors  of  His  Britannic 
Majesty’s  dominions  in  America  not  included  within  the  above- 
mentioned  limits;  provided,  however,  that  the  American  fishermen 

^As  the  full  text  of  the  agreement  for  arbitration  is  here  given,  it  is  not 
printed  again  under  a special  heading. 


148 


THE  HAGUE  COURT  REPORTS 


shall  be  admitted  to  enter  such  bays  and  harbors  for  the  purpose 
of  shelter  and  of  repairing  damages  therein,  of  purchasing  wood, 
and  of  obtaining  water,  and  for  no  other  purpose  whatever.  But 
they  shall  be  under  such  restrictions  as  may  be  necessary  to  prevent 
their  taking,  drying  or  curing  fish  therein,  or  in  any  other  manner 
whatever  abusing  the  privileges  hereby  reserved  to  them. 

And,  whereas,  differences  have  arisen  as  to  the  scope  and  mean- 
ing of  the  said  article,  and  of  the  liberties  therein  referred  to,  and 
otherwise  in  respect  of  the  rights  and  liberties  which  the  inhabitants 
of  the  United  States  have  or  claim  to  have  in  the  waters  or  on  the 
shores  therein  referred  to : 

It  is  agreed  that  the  following  questions  shall  be  submitted  for 
decision  to  a tribunal  of  arbitration  constituted  as  hereinafter  pro- 
vided : 

Question  i.  To  what  extent  are  the  following  contentions  or 
either  of  them  justified? 

It  is  contended  on  the  part  of  Great  Britain  that  the  exercise  of 
the  liberty  to  take  fish  referred  to  in  the  said  article,  which  the 
inhabitants  of  the  United  States  have  forever  in  common  with  the 
subjects  of  His  Britannic  Majesty,  is  subject,  without  the  consent 
of  the  United  States,  to  reasonable  regulation  by  Great  Britain, 
Canada,  or  Newfoundland  in  the  form  of  municipal  laws,  ordi- 
nances, or  rules,  as,  for  example,  to  regulations  in  respect  of  (1) 
the  hours,  days,  or  seasons  when  fish  may  be  taken  on  the  treaty 
coasts;  (2)  the  method,  means,  and  implements  to  be  used  in  the 
taking  of  fish  or  in  the  carrying  on  of  fishing  operations  on  such 
coasts;  (3)  any  other  matters  of  a similar  character  relating  to 
fishing ; such  regulations  being  reasonable,  as  being,  for  instance — 

(a)  Appropriate  or  necessary  for  the  protection  and  preservation 
of  such  fisheries  and  the  exercise  of  the  rights  of  British  subjects 
therein  and  of  the  liberty  which  by  the  said  Article  1 the  inhabitants 
of  the  United  States  have  therein  in  common  with  British  subjects; 

(b)  Desirable  on  grounds  of  public  order  and  morals; 

(c)  Equitable  and  fair  as  between  local  fishermen  and  the  in- 
habitants of  the  United  States  exercising  the  said  treaty  liberty 
and  not  so  framed  as  to  give  unfairly  an  advantage  to  the  former 
over  the  latter  class. 

It  is  contended  on  the  part  of  the  United  States  that  the  ex- 


THE  NORTH  ATLANTIC  COAST  FISHERIES  CASE 


149 


ercise  of  such  liberty  is  not  subject  to  limitations  or  restraints  by 
Great  Britain,  Canada,  or  Newfoundland  in  the  form  of  municipal 
laws,  ordinances,  or  regulations  in  respect  of  (1)  the  hours,  days, 
or  seasons  when  the  inhabitants  of  the  United  States  may  take  fish 
on  the  treaty  coasts,  or  (2)  the  method,  means,  and  implements 
used  by  them  in  taking  fish  or  in  carrying  on  fishing  operations  on 
such  coasts,  or  (3)  any  other  limitations  or  restraints  of  similar 
character — 

(a)  Unless  they  are  appropriate  and  necessary  for  the  protection 
and  preservation  of  the  common  rights  in  such  fisheries  and  the 
exercise  thereof ; and 

(b)  Unless  they  are  reasonable  in  themselves  and  fair  as  between 
local  fishermen  and  fishermen  coming  from  the  United  States,  and 
not  so  framed  as  to  give  an  advantage  to  the  former  over  the  latter 
class ; and 

(c)  Unless  their  appropriateness,  necessity,  reasonableness,  and 
fairness  be  determined  by  the  United  States  and  Great  Britain  by 
common  accord  and  the  United  States  concurs  in  their  enforcement. 

Question  2.  Have  the  inhabitants  of  the  United  States,  while 
exercising  the  liberties  referred  to  in  said  article,  a right  to  employ 
as  members  of  the  fishing  crews  of  their  vessels  persons  not 
inhabitants  of  the  United  States? 

^ Question  Can  the  exercise  by  the  inhabitants  of  the  United 
/States  of  the  liberties  referred  to  in  the  said  article  be  subjected, 
/ without  the  consent  of  the  United  States,  to  the  requirements  of 
j entry  or  report  at  custom-houses  or  the  payment  of  light  or  harbor 
'^and  other  dues,  or  to  any  other  similar  requirement  or  condition  or 
exaction  ? 

Question  4.  Under  the  provision  of  the  said  article  that  the 
American  fishermen  shall  be  admitted  to  enter  certain  bays  or 
harbors  for  shelter,  repairs,  wood,  or  water,  and  for  no  other  pur- 
pose whatever,  but  that  they  shall  be  under  such  restrictions  as  may 
be  necessary  to  prevent  their  taking,  drying,  or  curing  fish  therein 
or  in  any  other  manner  whatever  abusing  the  privileges  thereby  re- 
^ served  to  them,  is  it  permissible  to  impose  restrictions  making  the 
exercise  of  such  privileges  conditional  upon  the  payment  of  light  or 
harbor  or  other  dues,  or  entering  or  reporting  at  custom-houses  or 
any  similar  conditions? 


150 


THE  HAGUE  COURT  REPORTS 


f Question  5.  From  where  must  be  measured  the  “three  marine 
miles  of  any  of  the  coasts,  bays,  creeks,  or  harbors”  referred  to 
^in  the  said  article? 

Q<uestion  6.  Have  the  inhabitants  of  the  United  States  the  lib- 
erty under  the  said  article  or  otherwise  to  take  fish  in  the  bays, 
harbors,  and  creeks  on  that  part  of  the  southern  coast  of  Newfound- 
land which  extends  from  Cape  Ray  to  Rameau  Islands,  or  on  the 
western  and  northern  coasts  of  Newfoundland  from  Cape  Ray  to 
Quirpon  Islands,  or  on  the  Magdalen  Islands? 

Question  7.  Are  the  inhabitants  of  the  United  States  whose 
vessels  resort  to  the  treaty  coasts  for  the  purpose  of  exercising  the 
liberties  referred  to  in  Article  1 of  the  treaty  of  1818  entitled  to 
have  for  those  vessels,  when  duly  authorized  by  the  United  States 
in  that  behalf,  the  commercial  privileges  on  the  treaty  coasts  ac- 
corded by  agreement  or  otherwise  to  United  States  trading  vessels 
generally  ? 

Article  2 

Either  party  may  call  the  attention  of  the  tribunal  to  any  legis- 
lative or  executive  act  of  the  other  party,  specified  within  three 
months  of  the  exchange  of  notes  enforcing  this  agreement,  and 
which  is  claimed  to  be  inconsistent  with  the  true  interpretation  of 
the  treaty  of  1818;  and  may  call  upon  the  tribunal  to  express  in  its 
award  its  opinion  upon  such  acts,  and  to  point  out  in  what  respects, 
if  any,  they  are  inconsistent  with  the  principles  laid  down  in  the 
award  in  reply  to  the  preceding  questions;  and  each  party  agrees  to 
conform  to  such  opinion. 


Article  3 

If  any  question  arises  in  the  arbitration  regarding  the  reason- 
ableness of  any  regulation  or  otherwise  which  requires  an  examina- 
tion of  the  practical  effect  of  any  provisions  in  relation  to  the  con- 
ditions surrounding  the  exercise  of  the  liberty  of  fishery  enjoyed 
by  the  inhabitants  of  the  United  States,  or  which  requires  expert 
information  about  the  fisheries  themselves,  the  tribunal  may,  in  that 
case,  refer  such  question  to  a commission  of  three  expert  specialists 
in  such  matters ; one  to  be  designated  by  each  of  the  parties  hereto, 
and  the  third,  who  shall  not  be  a national  of  either  party,  to  be 
designated  by  the  tribunal.  This  commission  shall  examine  into 


THE  NORTH  ATLANTIC  COAST  FISHERIES  CASE 


151 


and  report  their  conclusions  on  any  question  or  questions  so  re- 
ferred to  it  by  the  tribunal  and  such  report  shall  be  considered  by 
the  tribunal  and  shall,  if  incorporated  by  them  in  the  award,  be 
accepted  as  a part  thereof. 

Pending  the  report  of  the  commission  upon  the  question  or  ques- 
tions so  referred  and  without  awaiting  such  report,  the  tribunal  may 
make  a separate  award  upon  all  or  any  other  questions  before  it, 
and  such  separate  award,  if  made,  shall  become  immediately  ef- 
fective, provided  that  the  report  aforesaid  shall  not  be  incorporated 
in  the  award  until  it  has  been  considered  by  the  tribunal.  The  ex- 
penses of  such  commission  shall  be  borne  in  equal  moieties  by  the 
parties  hereto. 

Article  4 

The  tribunal  shall  recommend  for  the  consideration  of  the  high 
contracting  Parties  rules  and  a method  of  procedure  under  which 
all  questions  which  may  arise  in  future  regarding  the  exercise  of 
the  liberties  above  referred  to  may  be  determined  in  accordance 
with  the  principles  laid  down  in  the  award.  If  the  high  contracting 
Parties  shall  not  adopt  the  rules  and  method  of  procedure  so  recom- 
mended, or  if  they  shall  not,  subsequently  to  the  delivery  of  the 
award,  agree  upon  such  rules  and  methods,  then  any  differences 
which  may  arise  in  the  future  between  the  high  contracting  Parties 
relating  to  the  interpretation  of  the  treaty  of  1818  or  to  the  effect 
and  application  of  the  award  of  the  tribunal  shall  be  referred  in- 
formally to  the  Permanent  Court  at  The  Hague  for  decision  by 
the  summary  procedure  provided  in  Chapter  IV  of  the  Hague 
Convention  of  the  18th  October,  1907. 

Article  5 

' The  tribunal  of  arbitration  provided  for  herein  shall  be  chosen 
from  the  general  list  of  members  of  the  Permanent  Court  at 
The  Hague,  in  accordance  with  the  provisions  of  Article  45  of  the 
Convention  for  the  settlement  of  international  disputes,  concluded 
at  the  Second  Peace  Conference  at  The  Hague  on  the  18th  of  Octo- 
ber, 1907.  The  provisions  of  said  Convention,  so  far  as  applicable 
and  not  inconsistent  herewith,  and  excepting  Articles  53  and  54, 
shall  govern  the  proceedings  under  the  submission  herein  pro- 
vided for. 


152 


THE  HAGUE  COURT  REPORTS 


The  time  allowed  for  the  direct  agreement  of  His  Britannic 
Majesty  and  the  President  of  the  United  States  on  the  composition 
of  such  tribunal  shall  be  three  months. 

Article  6 

The  pleadings  shall  be  communicated  in  the  order  and  within  the 
time  following: 

As  soon  as  may  be  and  within  a period  not  exceeding  seven 
months  from  the  date  of  the  exchange  of  notes  making  this  agree- 
ment binding  the  printed  case  of  each  of  the  parties  hereto,  accom- 
panied by  printed  copies  of  the  documents,  the  official  correspon- 
dence, and  all  other  evidence  on  which  each  party  relies,  shall  be 
delivered  in  duplicate  (with  such  additional  copies  as  may  be  agreed 
upon)  to  the  agent  of  the  other  party.  It  shall  be  sufficient  for  this 
purpose  if  such  case  is  delivered  at  the  British  Embassy  at  Wash- 
ington or  at  the  American  Embassy  at  London,  as  the  case  may  be, 
for  transmission  to  the  agent  for  its  Government. 

Within  fifteen  days  thereafter  such  printed  case  and  accompany- 
ing evidence  of  each  of  the  parties  shall  be  delivered  in  duplicate 
to  each  member  of  the  tribunal,  and  such  delivery  may  be  made  by 
depositing  within  the  stated  period  the  necessary  number  of  copies 
with  the  International  Bureau  at  The  Hague  for  transmission  to 
the  arbitrators. 

After  the  delivery  on  both  sides  of  such  printed  case,  either  party 
may,  in  like  manner,  and  within  four  months  after  the  expiration 
of  the  period  above  fixed  for  the  delivery  to  the  agents  of  the  case, 
deliver  to  the  agent  of  the  other  party  (with  such  additional  copies 
as  may  be  agreed  up>on),  a printed  counter-case  accompanied  by 
printed  copies  of  additional  documents,  correspondence,  and  other 
evidence  in  reply  to  the  case,  documents,  correspondence,  and  other 
evidence  so  presented  by  the  other  party,  and  within  fifteen  days 
thereafter  such  party  shall,  in  like  manner  as  above  provided,  de- 
liver in  duplicate  such  counter-case  and  accompanying  evidence  to 
each  of  the  arbitrators. 

The  foregoing  provisions  shall  not  prevent  the  tribunal  from  per- 
mitting either  party  to  rely  at  the  hearing  upon  documentary  or 
other  evidence  which  is  shown  to  have  become  open  to  its  investiga- 
tion or  examination  or  available  for  use  too  late  to  be  submitted 


THE  NORTH  ATLANTIC  COAST  FISHERIES  CASE 


153 


within  the  period  hereinabove  fixed  for  the  delivery  of  copies  of 
evidence,  but  in  case  any  such  evidence  is  to  be  presented,  printed 
copies  of  it,  as  soon<  as  possible  after  it  is  secured,  must  be  de- 
livered, in  like  manner  as  provided  for  the  delivery  of  copies  of 
other  evidence,  to  each  of  the  arbitrators  and  to  the  agent  of  the 
other  party.  The  admission  of  any  such  additional  evidence,  how- 
ever, shall  be  subject  to  such  conditions  as  the  tribunal  may  impose, 
and  the  other  party  shall  have  a reasonable  opportunity  to  offer 
additional  evidence  in  rebuttal. 

The  tribunal  shall  take  into  consideration  all  evidence  which  is 
offered  by  either  party. 

Article  7 

If  in  the  case  or  counter-case  (exclusive  of  the  accompanying 
evidence)  either  party  shall  have  specified  or  referred  to  any  docu- 
ments, correspondence,  or  other  evidence  in  its  own  exclusive  posses- 
sion without  annexing  a copy,  such  party  shall  be  bound,  if  the  other 
party  shall  demand  it  within  thirty  days  after  the  delivery  of  the 
case  or  counter-case  respectively,  to  furnish  to  the  party  applying 
for  it  a copy  thereof ; and  either  party  may,  within  the  like  time, 
demand  that  the  other  shall  furnish  certified  copies  or  produce  for 
inspection  the  originals  of  any  documentary  evidence  adduced  by 
the  party  ujxin  whom  the  demand  is  made.  It  shall  be  the  duty  of 
the  party  upon  whom  any  such  demand  is  made  to  comply  with  it 
as  soon  as  may  be,  and  within  a period  not  exceeding  fifteen  days 
after  the  demand  has  been  received.  The  production  for  inspec- 
tion or  the  furnishing  to  the  other  party  of  official  governmental 
publications,  publishing,  as  authentic,  copies  of  the  documentary 
evidence  referred  to,  shall  be  a sufficient  compliance  with  such  de- 
mand, if  such  governmental  publications  shall  have  been  published 
prior  to  the  1st  day  of  January,  1908.  If  the  demand  is  not  com- 
plied with,  the  reasons  for  the  failure  to  comply  must  be  stated  to 
the  tribunal. 

Article  8 

The  tribunal  shall  meet  within  six  months  after  the  expiration 
of  the  period  above  fixed  for  the  delivery  to  the  agents  of  the  case, 
and  upon  the  assembling  of  the  tribunal  at  its  first  session  each 
party,  through  its  agent  or  counsel,  shall  deliver  in  duplicate  to 


154 


THE  HAGUE  COURT  REPORTS 


each  of  the  arbitrators  and  to  the  agent  and  counsel  of  the  other 
party  (with  such  additional  copies  as  may  be  agreed  upon)  a printed 
argument  showing  the  points  and  referring  to  the  evidence  ujx>n 
which  it  relies. 

The  time  fixed  by  this  agreement  for  the  delivery  of  the  case, 
counter-case,  or  argument,  and  for  the  meeting  of  the  tribunal, 
may  be  extended  by  mutual  consent  of  the  parties. 

Article  9 

The  decision  of  the  tribunal  shall,  if  possible,  be  made  within 
two  months  from  the  close  of  the  arguments  on  both  sides,  unless 
on  the  request  of  the  tribunal  the  parties  shall  agree  to  extend  the 
period. 

It  shall  be  made  in  writing,  and  dated  and  signed  by  each  mem- 
ber of  the  tribunal,  and  shall  be  accompanied  by  a statement  of 
reasons. 

A member  who  may  dissent  from  the  decision  may  record  his 
dissent  when  signing. 

The  language  to  be  used  throughout  the  proceedings  shall  be 
English. 

Article  10 

Each  party  reserves  to  itself  the  right  to  demand  a revision  ot 
V the  award.  Such  demand  shall  contain  a statement  of  the  grounds 
on  which  it  is  made  and  shall  be  made  within  five  days  of  the  pro- 
mulgation of  the  award,  and  shall  be  heard  by  the  tribunal  within 
ten  days  thereafter.  The  party  making  the  demand  shall  serve  a 
copy  of  the  same  on  the  opposite  party,  and  both  parties  shall  be 
heard  in  argument  by  the  tribunal  on  said  demand.  The  demand 
can  only  be  made  on  the  discovery  of  some  new  fact  or  circum- 
stance calculated  to  exercise  a decisive  influence  upon  the  award 
and  which  was  unknown  to  the  tribunal  and  to  the  party  demand- 
ing the  revision  at  the  time  the  discussion  was  closed,  or  upon  the 
ground  that  the  said  award  does  not  fully  and  sufficiently,  within 
the  meaning  of  this  agreement,  determine  any  question  or  ques- 
tions submitted.  If  the  tribunal  shall  allow  the  demand  for  a re- 
vision, it  shall  afford  such  opportunity  for  further  hearings  and 
arguments  as  it  shall  deem  necessary. 


THE  NORTH  ATLANTIC  COAST  FISHERIES  CASE 


155 


Article  11 

The  present  agreement  shall  be  deemed  to  be  binding  only  when 
confirmed  by  the  two  Governments  by  an  exchange  of  notes. 

In  witness  whereof  this  agreement  has  been  signed  and  sealed 
by  His  Britannic  Majesty’s  Ambassador  at  Washington,  the  Right 
Honorable  James  Bryce,  O.M.,  on  behalf  of  Great  Britain,  and  by 
the  Secretary  of  State  of  the  United  States,  Elihu  Root,  on  behalf 
of  the  United  States. 

Done  at  Washington  on  the  27th  day  of  January,  one  thousand 
nine  hundred  and  nine. 

James  Bryce  [seal] 

Elihu  Root  [seal] 

And  whereas,  the  parties  to  the  said  agreement  have  by  common 
accord,  in  accordance  with  Article  5,  constituted  as  a tribimal  of 
arbitration  the  following  members  of  the  Permanent  Court  at 
The  Hague:  Mr.  H.  Lammasch,  Doctor  of  Law,  professor  of  the 
University  of  Vienna,  Aulic  Councilor,  member  of  the  Upper  House 
of  the  Austrian  Parliament;  his  Excellency  Jonkheer  A.  F.  de 
Savornin  Lohman,  Doctor  of  Law,  Minister  of  State,  former 
Minister  of  the  Interior,  member  of  the  Second  Chamber  of  the 
Netherlands;  the  Honorable  George  Gray,  Doctor  of  Laws,  Judge 
of  the  United  States  Circuit  Court  of  Appeals,  former  United  States 
Senator;  the  Right  Honorable  Sir  Charles  Fitzpatrick,  member 
of  the  Privy  Council,  Doctor  of  Laws,  Chief  Justice  of  Canada;  the 
Honorable  Luis  Maria  Drago,  Doctor  of  Law,  former  Minister 
of  Foreign  Affairs  of  the  Argentine  Republic,  member  of  the  Law 
Academy  of  Buenos  Aires; 

And  whereas,  the  agents  of  the  parties  to  the  said  agreement 
have  duly  and  in  accordance  with  the  terms  of  the  agreement  com- 
municated to  this  tribunal  their  cases,  counter-cases,  printed  argu- 
ments, and  other  documents; 

And  whereas,  counsel  for  the  parties  have  fully  presented  to  this 
tribunal  their  oral  arguments  in  the  sittings  held  between  the  first 
assembling  of  the  tribunal  on  1st  June,  1910,  to  the  close  of  the 
hearings  on  12th  August,  1910; 

Now,  therefore,  this  tribunal  having  carefully  considered  the  said 
agreement,  cases,  counter-cases,  printed  and  oral  arguments,  and  the 


156 


THE  HAGUE  COURT  REPORTS 


documents  presented  by  either  side,  after  due  deliberation  makes 
the  following  decisions  and  awards : 

QUESTION  1 

To  what  extent  are  the  following  contentions  or  either  of  them 
justified  ? 

It  is  contended  on  the  part  of  Great  Britain  that  the  exercise  of 
the  liberty  to  take  fish  referred  to  in  the  said  article,  which  the  in- 
habitants of  the  United  States  have  forever  in  common  with  the 
subjects  of  His  Britannic  Majesty,  is  subject,  without  the  consent 
of  the  United  States,  to  reasonable  regulation  by  Great  Britain, 
Canada,  or  Newfoundland  in  the  form  of  mimicipal  laws,  ordi- 
nances, or  rules,  as,  for  example,  to  regulations  in  respect  of  (1) 
the  hours,  days,  or  seasons  when  fish  may  be  taken  on  the  treaty 
coasts;  (2)  the  method,  means,  and  implements  to  be  used  in  the 
taking  of  fish  or  in  the  carrying  on  of  fishing  operations  on  such 
coasts;  (3)  any  other  matters  of  a similar  character  relating  to 
fishing;  such  regulations  being  reasonable,  as  being,  for  instance — 

(a)  Appropriate  or  necessary  for  the  protection  and  preservation 
of  such  fisheries  and  the  exercise  of  the  rights  of  British  subjects 
therein  and  of  the  liberty  which  by  the  said  Article  1 the  inhabitants 
of  the  United  States  have  therein  in  common  with  British  subjects; 

(b)  Desirable  on  grounds  of  public  order  and  morals; 

(c)  Equitable  and  fair  as  between  local  fishermen  and  the  in- 
habitants of  the  United  States  exercising  the  said  treaty  liberty, 
and  not  so  framed  as  to  give  unfairly  an  advantage  to  the  former 
over  the  latter  class. 

It  is  contended  on  the  part  of  the  United  States  that  the  exercise 
of  such  liberty  is  not  subject  to  limitations  or  restraints  by  Great 
Britain,  Canada,  or  Newfoundland  in  the  form  of  municipal  laws, 
ordinances,  or  regulations  in  respect  of  ( 1 ) the  hours,  days,  or 
seasons  when  the  inhabitants  of  the  United  States  may  take  fish  on 
the  treaty  coasts,  or  (2)  the  method,  means,  and  implements  used 
by  them  in  taking  fish  or  in  carrying  on  fishing  operations  on  such 
coasts,  or  (3)  any  other  limitations  or  restraints  of  similar  char- 
acter— 

(a)  Unless  they  are  appropriate  and  necessary  for  the  protection 
and  preservation  of  the  common  rights  in  such  fisheries  and  the  ex- 
ercise thereof ; and 


THE  NORTH  ATLANTIC  COAST  FISHERIES  CASE 


157 


(b)  Unless  they  are  reasonable  in  themselves  and  fair  as  be- 
tween local  fishermen  and  fishermen  coming  from  the  United  States, 
and  not  so  framed  as  to  give  an  advantage  to  the  former  over  the 
latter  class;  and 

(c)  Unless  their  appropriateness,  necessity,  reasonableness,  and 
fairness  be  determined  by  the  United  States  and  Great  Britain  by 
common  accord  and  the  United  States  concurs  in  their  enforcement. 

'Question  I,  thus  submitted  to  the  tribunal,  resolves  itself  into  two 
main  contentions: 

1st.  Whether  the  right  of  regulating  reasonably  the  liberties  con- 
ferred by  the  treaty  of  1818  resides  in  Great  Britain; 

2nd.  And,  if  such  right  does  so  exist,  whether  such  reasonable 
exercise  of  the  right  is  permitted  to  Great  Britain  without  the  oc- 
cord  and  concurrence  of  the  United  States. 

The  treaty  of  1818  contains  no  explicit  disposition  in  regard  to 
the  right  of  regulation,  reasonable  or  otherwise;  it  neither  reserves 
that  right  in  express  terms,  nor  refers  to  it  in  any  way.  It  is  there- 
fore incumbent  on  this  tribunal  to  answer  the  two  questions  above 
indicated  by  interpreting  the  general  terms  of  Article  1 of  the  treaty, 
and  more  especially  the  words  “the  inhabitants  of  the  United  States 
shall  have,  for  ever,  in  common  with  the  subjects  of  His  Britannic 
Majesty,  the  liberty  to  take  fish  of  every  kind.”  This  interpretation 
must  be  conformable  to  the  general  import  of  the  instrument,  the 
general  intention  of  the  parties  to  it,  the  subject  matter  of  the 
contract,  the  expressions  actually  used  and  the  evidence  submitted. 

Now  in  regard  to  the  preliminary  question  as  to  whether  the 
right  of  reasonable  regulation  resides  in  Great  Britain : 

Considering  that  the  right  to  regulate  the  liberties  conferred  by 
the  treaty  of  1818  is  an  attribute  of  sovereignty,  and  as  such  must 
be  held  to  reside  in  the  territorial  sovereign,  unless  the  contrary  be 
provided;  and  considering  that  one  of  the  essential  elements  of 
sovereignty  is  that  it  is  to  be  exercised  within  territorial  limits, 
and  that,  failing  proof  to  the  contrary,  the  territory  is  coterminous 
with  the  sovereignty,  it  follows  that  the  burden  of  the  assertion  in- 
volved in  the  contention  of  the  United  States  (viz.,  that  the  right 
to  regulate  does  not  reside  independently  in  Great  Britain,  the 
territorial  sovereign)  must  fall  on  the  United  States.  And  for  the 
purpose  of  sustaining  this  burden,  the  United  States  have  put  for- 
ward the  following  series  of  propositions,  each  one  of  which  must 
be  singly  considered. 


158 


THE  HAGUE  COURT  REPORTS 


It  is  contended  by  the  United  States : 

(1)  That  the  French  right  of  fishery  under  the  treaty  of  1713 
designated  also  as  a liberty,  was  never  subjected  to  regula- 
tion by  Great  Britain,  and  therefore  the  inference  is  war- 
ranted that  the  American  liberties  of  fishery  are  similarly 
exempted. 

The  tribunal  is  unable  to  agree  with  this  contention : 

(a)  Because  although  the  French  right  designated  in  1713 
merely  “an  allowance,”  (a  term  of  even  less  force  than  that  used 
in  regard  to  the  American  fishery)  was  nevertheless  converted,  in 
practice,  into  an  exclusive  right,  this  concession  on  the  part  of 
Great  Britain  was  presumably  made  because  France,  before  1713, 
claimed  to  be  the  sovereign  of  Newfoundland,  and,  in  ceding  the 
island,  had,  as  the  American  argument  says,  “reserved  for  the  bene- 
fit of  its  subjects  the  right  to  fish  and  to  use  the  strand” ; 

(b)  Because  the  distinction  between  the  French  and  American 
right  is  indicated  by  the  different  wording  of  the  statutes  for  the 
observance  of  treaty  obligations  towards  France  and  the  United 
States,  and  by  the  British  Declaration  of  1783; 

(c)  And,  also,  because  this  distinction  is  maintained  in  the  treaty 
with  France  of  1904,  concluded  at  a date  when  the  American  claim 
was  approaching  its  present  stage,  and  by  which  certain  common 
rights  of  regulation  are  recognized  to  France. 

For  the  further  purpose  of  such  proof  it  is  contended  by  the 
United  States : 

(2)  That  the  liberties  of  fishery,  being  accorded  to  the  inhabi- 
tants of  the  United  States  “for  ever,”  acquire,  by  being  in 
perpetuity  and  unilateral,  a character  exempting  them  from 
local  legislation. 

The  tribunal  is  unable  to  agree  with  this  contention : 

(a)  Because  there  is  no  necessary  connection  between  the  dura- 
tion of  a grant  and  its  essential  status  in  its  relation  to  local  regu- 
lation ; a right  granted  in  perpetuity  may  yet  be  subject  to  regula- 
tion, or,  granted  temporarily,  may  yet  be  exempted  therefrom;  or 
being  reciprocal  may  yet  be  unregulated,  or  being  unilateral  may  yet 


THE  NORTH  ATLANTIC  COAST  FISHERIES  CASE 


159 


be  regulated : as  is  evidenced  by  the  claim  of  the  United  States  that 
the  liberties  of  fishery  accorded  by  the  reciprocity  treaty  of  1854 
and  the  treaty  of  1871  were  exempt  from  regulation,  though  they 
were  neither  permanent  nor  unilateral  ; 

(&)  Because  no  peculiar  character  need  be  claimed  for  these  lib- 
erties in  order  to  secure  their  enjoyment  in  perpetuity,  as  is  evi- 
denced by  the  American  negotiators  in  1818  asking  for  the  insertion 
of  the  words  “for  ever.”  International  law  in  its  modem  develop- 
ment recognizes  that  a great  number  of  treaty  obligations  are  not 
annulled  by  war,  but  at  most  suspended  by  it ; 

(c)  Because  the  liberty  to  dry  and  cure  is,  pursuant  to  the  terms 
of  the  treaty,  provisional  and  not  permanent,  and  is  nevertheless,  in 
respect  of  the  liability  to  regulation,  identical  in  its  nature  with,  and 
never  distinguished  from,  the  liberty  to  fish. 

For  the  further  purpose  of  such  proof,  the  United  States  allege ; 

(3)  That  the  liberties  of  fishery  granted  to  the  United  States 
constitute  an  international  servitude  in  their  favor  over  the 
territory  of  Great  Britain,  thereby  involving  a derogation 
from  the  sovereignty  of  Great  Britain,  the  servient  State, 
and  that  therefore  Great  Britain  is  deprived,  by  reason  of 
the  grant,  of  its  independent  right  to  regulate  the  fishery. 

The  tribunal  is  unable  to  agree  with  this  contention : 

(a)  Because  there  is  no  evidence  that  the  doctrine  of  inter- 
national servitude  was  one  with  which  either  American  or  British 
statesmen  were  conversant  in  1818,  no  English  publicists  employing 
the  term  before  1818,  and  the  mention  of  it  in  Mr.  Gallatin’s  report 
being  insufficient; 

(b)  Because  a servitude  in  the  French  law,  referred  to  by  Mr. 
Gallatin,  can,  since  the  code,  be  only  real  and  can  not  be  personal 
{Code  Civil,  Art.  686) ; 

(c)  Because  a servitude  in  international  law  predicates  an  ex- 
press grant  of  a sovereign  right  and  involves  an  analogy  to  the 
relation  of  a praedium  dominans  and  a praedium  serviens;  whereas 
by  the  treaty  of  1818  one  State  grants  a liberty  to  fish,  which  is  not 
a sovereign  right,  but  a purely  econonjic  right,  to  the  inhabitants  of 
.another  State; 


160 


THE  HAGUE  COURT  REPORTS 


(d)  Because  the  doctrine  of  international  servitude  in  the  sense 
which  is  now  sought  to  be  attributed  to  it  originated  in  the  peculiar 
and  now  obsolete  conditions  prevailing  in  the  Holy  Roman  Empire 
of  which  the  domini  terrae  were  not  fully  sovereigns;  they  holding 
territory  under  the  Roman  Empire,  subject  at  least  theoretically, 
and  in  some  respects  also  practically,  to  the  courts  of  that  Empire ; 
their  right  being,  moreover,  rather  of  a civil  than  of  a public 
nature,  partaking  more  of  the  character  of  dominium  than  of  inu- 
perium,  and  therefore  certainly  not  a complete  sovereignty.  And 
because  in  contradistinction  to  this  quasi-sovereignty  with  its  inco- 
herent attributes  acquired  at  various  times,  by  various  means,  and 
not  impaired  in  its  character  by  being  incomplete  in  any  one  respect 
or  by  being  limited  in  favor  of  another  territory  and  its  possessor, 
ithe  modern  State,  and  particularly  Great  Britain,  has  never  ad- 
(mitted  partition  of  sovereignty,  owing  to  the  constitution  of  a 
modern  State  requiring  essential  sovereignty  and  independence; 

(e)  Because  this  doctrine  being  but  little  suited  to  the  principle 
of  sovereignty  which  prevails  in  States  under  a system  of  con- 
stitutional government  such  as  great  Britain  and  the  United  States, 
and  to  the  present  international  relations  of  sovereign  States,  has 
found  little,  if  any,  support  from  modem  publicists.  It  could  there- 
fore in  the  general  interest  of  the  community  of  nations,  and  of 
the  parties  to  this  treaty,  be  affirmed  by  this  tribunal  only  on  the 
express  evidence  of  an  international  contract; 

(f)  Because  even  if  these  liberties  of  fishery  constituted  an  in- 
ternational servitude,  the  servitude  would  derogate  from  the  sov- 
ereignty of  the  servient  State  only  in  so  far  as  the  exercise  of  the 
rights  of  sovereignty  by  the  servient  State  would  be  contrary  to  the 
exercise  of  the  servitude  right  by  the  dominant  State.  Whereas  it 
is  evident  that,  though  every  regulation  of  the  fishery  is  to  some 
extent  a limitation,  as  it  puts  limits  to  the  exercise  of  the  fishery 
at  will,  yet  such  regulations  as  are  reasonable  and  made  for  the 
purpose  of  securing  and  preserving  the  fishery  and  its  exercise  for 
the  common  benefit,  are  clearly  to  be  distinguished  fromi  those  re- 
strictions and  “molestations,”  the  annulment  of  which  was  the 
purpose  of  the  American  demands  formulated  by  Mr.  Adams  in 
1782,  and  such  regulations  consequently  can  not  be  held  to  be  in- 
consistent with  a servitude; 


THE  NORTH  ATLANTIC  COAST  FISHERIES  CASE 


161 


(g)  Because  the  fishery  to  which  the  inhabitants  of  the  United 
States  were  admitted  in  1783,  and  again  in  1818,  was  a regulated 
fishery,  as  is  evidenced  by  the  following  regulations: 

Act  15  Charles  II,  Cap.  16,  s.  7 (1663)  forbiddin^“to  lay  any 
seine  or  other  net  in  or  near  any  harbor  in  Newfoundland,  whereby 
to  take  the  spawn  or  young  fry  of  the  Poor-John,  or  for  any  other 
use  or  uses,  except  for  the  taking  of  bait  only,”  which  had  not  been 
superseded  either  by  the  order  in  council  of  March  10th,  1670,  or 
by  the  statute  10  and  11  Wm.  Ill,  Cap.  25,  1699.  The  order  in 
council  provides  expressly  for  the  obligation  “to  submit  unto  and 
to  observe  all  rules  and  orders  as  are  now,  or  hereafter  shall  be 
established,”  an  obligation  which  can  not  be  read  as  referring  only 
to  the  rules  established  by  this  very  act,  and  having  no  reference 
to  anteceding  rules  “as  are  now  established.”  In  a similar  way, 
the  statute  of  1699  preserves  in  force  prior  legislation,  conferring 
the  freedom  of  fishery  only  “as  fully  and  freely  as  at  any  time  here- 
tofore.” The  order  in  council,  1670,  provides  that  the  admirals, 
who  always  were  fishermen,  arriving  from  an  English  or  Welsh 
port,  “see  that  His  Majesty’s  rules  and  orders  concerning  the  regu- 
lation of  the  fisheries  are  duly  put  in  execution”  (sec.  13).  Like- 
wise the  Act  10  and  11  Wm.  Ill,  Cap.  25  (1699)  provides  that 
the  admirals  do  settle  differences  between  the  fishermen  arising  in 
respect  of  the  places  to  be  assigned  to  the  different  vessels.  As  to 
Nova  Scotia,  the  proclamation  of  1665  ordains  that  no  one  shall 
fish  without  license;  that  the  licensed  fishermen  are  obliged  “to  ob- 
serve all  laws  and  orders  which  now  are  made  and  published,  or 
shall  hereafter  be  made  and  published  in  this  jurisdiction,”  and 
that  they  shall  not  fish  on  the  Lord’s  day  and  shall  not  take  fish  at 
the  time  they  come  to  spawn.  The  judgment  of  the  Chief  Justice 
of  Newfoundland,  October  26th,  1820,  is  not  held  by  the  tribunal 
sufficient  to  set  aside  the  proclamations  referred  to.  After  1783, 
the  statute  26  Geo.  Ill,  Cap.  26,  1786,  forbids  “the  use,  on  the 
shores  of  Newfoundland,  of  seines  or  nets  for  catching  cod  by  haul- 
ing on  shore  or  taking  into  boat,  with  meshes  less  than  4 inches” ; 
a prohibition  which  can  not  be  considered  as  limited  to  the  bank 
fishery.  The  act  for  regulating  the  fisheries  of  New  Brunswick, 
1793,  which  forbids  “the  placing  of  nets  or  seines  across  any  cove 
or  creek  in  the  province  so  as  to  obstruct  the  natural  course  of 


162 


THE  HAGUE  COURT  REPORTS 


fish”  and  which  makes  specific  provision  for  fishing  in  the  harbor 
of  St.  John,  as  to  the  manner  and  time  of  fishing,  can  not  be  read 
as  being  limited  to  fishing  from  the  shore.  The  act  for  regulating 
the  fishing  on  the  coast  of  Northumberland  (1799)  contains  very- 
elaborate  dispositions  concerning  the  fisheries  in  the  bay  of  Mira- 
michi  which  were  continued  in  1823,  1829,  and  1834.  The  statutes 
of  Lower  Canada,  1788  and  1807,  forbid  the  throwing  overboard 
of  offal.  The  fact  that  these  acts  extend  the  prohibition  over  a 
greater  distance  than  the  first  marine  league  from  the  shore  may 
make  them  non-operative  against  foreigners  without  the  territorial 
limits  of  Great  Britain,  but  is  certainly  no  reason  to  deny  their 
obligatory  character  for  foreigners  within  these  limits ; 

(h)  Because  the  fact  that  Great  Britain  rarely  exercised  the 
right  of  regulation  in  the  period  immediately  succeeding  1818  is  to 
be  explained  by  various  circumstances  and  is  not  evidence  of  the 
non-existence  of  the  right ; 

(i)  Because  the  words  “in  common  with  British  subjects”  tend 
to  confirm  the  opinion  that  the  inhabitants  of  the  United  States 

I were  admitted  to  a regulated  fishery ; 

(/)  Because  the  statute  of  Great  Britain,  1819,  which  gives  legis- 
lative sanction  to  the  treaty  of  1818,  provides  for  the  making  of 
“regulations  with  relation  to  the  taking,  drying  and  curing  fish  by 
inhabitants  of  the  United  States  in  ‘common.’  ” 

For  the  purpose  of  such  proof,  it  is  further  contended  by  the 
United  States,  in  this  latter  connection : 

(4)  That  the  words  “in  common  with  British  subjects”  used  in 
the  treaty  should  not  be  held  as  importing  a common  sub- 
jection to  regulation,  but  as  intending  to  negative  a possible  ' 
pretension  on  the  part  of  the  inhabitants  of  the  United  States 
to  liberties  of  fishery  exclusive  of  the  right  of  British  sub- 
jects to  fish. 

^The  tribunal  is  unable  to  agree  with  this  contention : 

(a)  Because  such  an  interpretation  is  inconsistent  with  the  his- 
torical basis  of  the  American  fishing  liberty.  The  ground  on  which 
_Mr.  Adams  fQunded  the  American  right  in  1782  was  that  the  people 
then  constituting  the  United  States  had  always,  when  still  under 


THE  NORTH  ATLANTIC  COAST  FISHERIES  CASE 


163 


British  rule,  a part  in  these  fisheries  and  that  they  must  continue 
to  enjoy  their  past  right  in  the  future.  |He  proposed  “that  the  sub- 
ejects  of  His  Britannic  Majesty  and  the  people  of  the  United  States 
\ shall  continue  to  enjoy  unmolested  the  right  to  take  fish  . 
where  the  inhabitants  of  both  countries  used,  at  any  time  hereto- 
fore, to  fish.pl  The  theory  of  the  partition  of  the  fisheries,  which 
by  the  American  negotiators  had  been  advanced  with  so  much 
force,  negatives  the  assumption  that  the  United  States  could  ever 
pretend  to  an  exclusive  right  to  fish  on  the  British  shores ; and  to 
insert  a special  disposition  to  that  end  would  have  been  wholly 
superfluous; 

(b)  Because  the  words  “in  common”  occur  in  the  same  con- 
nection in  the  treaty  of  1818  as  in  the  treaties  of  1854  and  1871. 
It  will  certainly  not  be  suggested  that  in  these  treaties  of  1854 
and  1871  the  American  negotiators  meant  by  inserting  the  words 
“in  common”  to  imply  that  without  these  words  American  citi- 
zens would  be  precluded  from  the  right  to  fish  on  their  own  coasts 
and  that,  on  American  shores,  British  subjects  should  have  an  ex- 
clusive privilege.  It  would  have  been  the  very  opposite  of  the  con- 
cept of  territorial  waters  to  suppose  that,  without  a special  treaty 
provision,  British  subjects  could  be  excluded  from  fishing  in  Brit- 
ish waters.  Therefore  that  can  not  have  been  the  scope  and  the 
sense  of  the  words  “in  common” ; 

/'^  (c)  Because  the  words  “in  common”  exclude  the  supposition 
that  American  inhabitants  were  at  liberty  to  act  at  will  for  the  pur- 
pose of  taking  fish,  without  any  regard  to  the  coexisting  rights  of 
other  persons  entitled  to  do  the  same  thing;  and  because  these 
words  admit  them  only  as  members  of  a social  community,  subject 
to  the  ordinary  duties  binding  upon  the  citizens  of  that  community, 
as  to  the  regulations  made  for  the  common  benefit;  thus  avoiding 
the  helium  omnium  contra  omnes  which  would  otherwise  arise  in 
the  exercise  of  this  industry; 

(d)  Because  these  words  are  such  as  would  naturally  suggest 
themselves  to  the  negotiators  of  1818  if  their  intention  had  been 
to  express  a common  subjection  to  regulations  as  well  as  a com- 
mon right. 

In  the  course  of  the  Argument  it  has  also  been  alleged  by  the 
United  States: 


164 


THE  HAGUE  COURT  REPORTS 


(5)  That  the  treaty  of  1818  should  be  held  to  have  entailed  a 
transfer  or  partition  of  sovereignty,  in  that  it  must  in  re- 
spect to  the  liberties  of  fishery  be  interpreted  in  its  rela- 
tion to  the  treaty  of  1783;  and  that  this  latter  treaty  was 
an  act  of  partition  of  sovereignty  and  of  separation,  and  as 
such  was  not  annulled  by  the  war  of  1812. 

Although  the  tribunal  is  not  called  upon  to  decide  the  issue 
whether  the  treaty  of  1783  was  a treaty  of  partition  or  not,  the 
questions  involved  therein  having  been  set  at  rest  by  the  subse- 
quent treaty  of  1818,  nevertheless  the  tribunal  could  not  forbear 
to  consider  the  contention  on  account  of  the  important  bearing  the 
controversy  has  upon  the  true  interpretation  of  the  treaty  of  1818. 
In  that  respect  the  tribunal  is  of  opinion ; 

(a)  That  the  right  to  take  fish  was  accorded  as  a condition  of 
peace  to  a foreign  people;  wherefore  the  British  negotiators  re- 
fused to  place  the  right  of  British  subjects  on  the  same  footing 
with  those  of  American  inhabitants;  and  further,  refused  to  insert 
the  words  also  prop>osed  by  Mr.  Adams  (“continue  to  enjoy”)  in 
the  second  branch  of  Art.  3 of  the  treaty  of  1783; 

(b)  That  the  treaty  of  1818  was  in  different  terms,  and  very 
different  in  extent,  from  that  of  1783,  and  was  made  for  different 
considerations.  It  was,  in  other  words,  a new  grant. 

For  the  purpose  of  such  proof  it  is  further  contended  by  the 

^ United  States: 

/(6)  That  as  contemporary  commercial  treaties  contain  express 
/ provisions  for  submitting  foreigners  to  local  legislation,  and 
I the  treaty  of  1818  contains  no  such  provision,  it  should  be 
\ held,  a contrario,  that  inhabitants  of  the  United  States  ex- 
\ ercising  these  liberties  are  exempt  from  regulation. 

(The  tribunal  is  unable  to  agree  with  this  contention : 

(o)  Because  the  commercial  treaties  contemplated  did  not  ad- 
mit foreigners  to  all  and  equal  rights,  seeing  that  local  legislation 
excluded  them  from  many  rights  of  importance,  e.  g.,  that  of  hold- 
ing land ; and  the  purport  of  the  provisions  in  question  conse- 
quently was  to  preserve  these  discriminations.  But  no  such  dis- 


THE  NORTH  ATLANTIC  COAST  FISHERIES  CASE 


165 


criminations  existing  in  the  common  enjoyment  of  the  fishery  by 
American  and  British  fishermen,  no  such  provision  was  required; 
/ (b)  Because  no  proof  is  furnished  of  similar  exemptions  of  for- 

eigners from  local  legislation  in  default  of  treaty  stipulations  sub- 
jecting them  thereto; 

(c)  Because  no  such  express  provision  for  subjection  of  the 
nationals  of  either  party  to  local  law  was  made  either  in  this  treaty, 
in  respect  to  their  reciprocal  admission  to  certain  territories  as 
agreed  in  Art.  3,  or  in  Art.  3 of  the  treaty  of  1794;  although  such 
subjection  was  clearly  contemplated  by  the  parties. 

For  the  purpose  of  such  proof  it  is  further  contended  by  the 
United  States: 

(7)  That,  as  the  liberty  to  dry  and  cure  on  the  treaty  coasts  and 
to  enter  bays  and  harbors  on  the  non-treaty  coasts  are  both 
subjected  to  conditions,  and  the  latter  to  specific  restrictions, 
it  should  therefore  be  held  that  the  liberty  to  fish  should  be 
subjected  to  no  restrictions,  as  none  are  provided  for  in  the 
treaty. 

The  tribunal  is  unable  to  apply  the  principle  of  expressio  unim 
exchisio  alterius  to  this  case : 

(a)  Because  the  conditions  and  restrictions  as  to  the  liberty  to  dry 
and  cure  on  the  shore  and  to  enter  the  harbors  are  limitations  of 
the  rights  themselves,  and  not  restrictions  of  their  exercise.  Thus 
the  right  to  dry  and  cure  is  limited  in  duration,  and  the  right  to 
enter  bays  and  harbors  is  limited  to  particular  purposes; 

(b)  Because  these  restrictions  of  the  right  to  enter  bays  and 
harbors  applying  solely  to  American  fishermen  must  have  been 
expressed  in  the  treaty,  whereas  regulations  of  the  fishery,  applying 
equally  to  American  and  British,  are  made  by  right  of  territorial 
sovereignty. 

For  the  purpose  of  such  proof  it  has  been  contended  by  the 
United  States: 

(8)  That  Lord  Bathurst  in  1815  mentioned  the  American  right 
under  the  treaty  of  1783  as  a right  to  be  exercised  “at  the 


166 


THE  HAGUE  COURT  REPORTS 


discretion  of  the  United  States”;  and  that  this  should  be 
held  as  to  be  derogatory  to  the  claim  of  exclusive  regula- 
tion by  Great  Britain. 

But  the  tribunal  is  tmable  to  agree  with  this  contention : 

(a)  Because  these  words  implied  only  the  necessity  of  an  ex- 
press stipulation  for  any  liberty  to  use  foreign  territory  at  the 
pleasure  of  the  grantee,  without  touching  any  question  as  to  regu- 
lation ; 

(b)  Because  in  this  same  letter  Lord  Bathurst  characterized  this 
right  as  a policy  “temporary  and  experimental,  depending  on  the 
use  that  might  be  made  of  it,  on  the  condition  of  the  islands  and 
places  where  it  was  to  be  exercised,  and  the  more  general  con- 
veniences or  inconveniences  from  a military,  naval,  and  commer- 
cial point  of  view”;  so  that  it  can  not  have  been  his  intention  to 
acknowledge  the  exclusion  of  British  interference  with  this  rig^t; 

(c)  Because  Lord  Bathurst  in  his  note  to  Governor  Sir  C.  Ham- 
ilton in  1819  orders  the  Governor  to  take  care  that  the  American 
fisher}'  on  the  coast  of  Labrador  be  carried  on  in  the  same  manner 
as  previous  to  the  late  war;  showing  that  he  did  not  interpret  the 
treaty  just  signed  as  a grant  conveying  absolute  immunity  from 
interference  with  the  American  fishery  right. 

For  the  purpose  of  such  proof  it  is  further  contended  by  the 
United  States: 

I (9)  That  on  various  other  occasions  following  the  conclusion 
I of  the  treaty,  as  evidenced  by  official  correspondence.  Great 
' Britain  made  use  of  expressions  inconsistent  with  the  claim 

to  a right  of  regulation. 

The  tribunal,  unwnlling  to  invest  such  expressions  with  an  im- 
portance entitling  them  to  affect  the  general  question,  considers  that 
such  conflicting  or  inconsistent  expressions  as  have  been  exposed 
on  either  side  are  sufficiently  explained  by  their  relations  to 
ephemeral  phases  of  a controversy  of  almost  secular  duration,  and 
should  be  held  to  be  without  direct  effect  on  the  principal  and  pres- 
ent issues. 

/{^ow  with  regard  to  the  second  contention  involved  in  Ques- 


THE  NORTH  ATLANTIC  COAST  FISHERIES  CASE 


167 


ftk 


Jtion  I,  as  to  whether  the  right  of  regulation  can  be  reasonably 
Exercised  by  Great  Britain  without  the  consent  of  the  United 
States : 

Considering  that  the  recognition  of  a concurrent  right  of  con- 
sent in  the  United  States  would  affect  the  independence  of  Great 
Britain,  which  would  become  dependent  on  the  Government  of  the 
United  States  for  the  exercise  of  its  sovereign  right  of  regulation, 
and  considering  that  such  a co-dominium  would  be  contrary  to  the 
constitution  of  both  sovereign  States;  the  burden  of  proof  is  im- 

( posed  on  the  United  States  to  show  that  the  independence  of  Great 
Britain  was  thus  impaired  by  international  contract  in  1818  and 
that  a co-dominium  was  created. 


For  the  purpose  of  such  proof  it  is  contended  by  the  United 
States : 

(10)  That  a concurrent  right  to  cooperate  in  the  making  and 
enforcement  of  regulations  is  the  only  possible  and  proper 
security  to  their  inhabitants  for  the  enjoyment  of  their  lib- 
erties of  fishery,  and  that  such  a right  must  be  held  to  be 
implied  in  the  grant  of  those  liberties  by  the  treaty  under 
interpretation. 


The  tribunal  is  unable  to  accede  to  this  claim  on  the  ground  of 
a right  so  implied : 

(a)  Because  every  State  has  to  execute  the  obligations  incurred 
by  treaty  hona  fide,  and  is  urged  thereto  by  the  ordinary  sanctions 
of  international  law  in  regard  to  observance  of  treaty  obligations. 
Such  sanctions  are,  for  instance,  appeal  to  public  opinion,  publica- 
tion of  correspondence,  censure  by  parliamentary  vote,  demand  for 
arbitration  with  the  odium  attendant  on  a refusal  to  arbitrate,  rup^- 
^ure  of  relations,  reprisal,  etc.  But  no  reason  has  been  shown  why 
/ this  treaty,  in  this  respect,  should  be  considered  as  different  from 
I every  other  treaty  under  which  the  right  of  a State  to  regulate  the 
\action  of  foreigners  admitted  by  it  on  its  territory  is  recognized ; 

(&)  Because  the  exercise  of  such  a right  of  consent  by  the 
United  States  would  predicate  an  abandonment  of  its  independence 
in  this  respect  by  Great  Britain,  and  the  recognition  by  the  latter 
^of  a concurrent  right  of  regulation  in  the  United  States.  But  the 


168 


THE  HAGUE  COURT  REPORTS 


treaty  conveys  only  a liberty  to  take  fish  in  common,  and  neither 
directly  nor  indirectly  conveys  a joint  right  of  regulation; 

(r)  Because  the  treaty  does  not  convey  a common  right  of 
fishery,  but  a liberty  to  fish  in  common.  This  is  evidenced  by  the 
attitude  of  the  United  States  Government  in  1823,  with  respect  to 
the  relations  of  Great  Britain  and  France  in  regard  to  the  fishery; 

(d)  Because  if  the  consent  of  the  United  States  were  requisite 
for  the  fishery  a general  veto  would  be  accorded  tliem,  the  full  ex- 
ercise of  which  would  be  socially  subversive  and  would  lead  to  the 
consequence  of  an  unregulatable  fishery ; 

(e)  Because  the  United  States  can  not  by  assent  give  legal  force 
and  validity  to  British  legislation; 

(f)  Because  the  liberties  to  take  fish  in  British  territorial  waters 
and  to  dry  and  cure  fish  on  land  in  British  territory  are  in  principle 
on  the  same  footing;  but  in  practice  a right  of  cooperation  in  the 
elaboration  and  enforcement  of  regulations  in  regard  to  the  latter 
liberty  (drying  and  curing  fish  on  land)  is  unrealizable. 

In  any  event,  Great  Britain,  as  the  local  sovereign,  has  the  duty 
of  preserving  and  protecting  the  fisheries.  In  so  far  as  it  is  neces- 
sary for  that  purpose.  Great  Britain  is  not  only  entitled,  but 
obliged,  to  provide  for  the  protection  and  preservation  of  fisheries ; 
always  remembering  that  the  exercise  of  this  right  of  legislation  is 
limited  by  the  obligation  to  execute  the  treaty  in  good  faith.  This 
has  been  admitted  by  counsel  and  recognized  by  Great  Britain  in 
limiting  the  right  of  regulation  to  that  of  reasonable  regulation. 
The  inherent  defect  of  this  limitation  of  reasonableness,  without 
any  sanction  except  in  diplomatic  remonstrance,  has  been  supplied 
by  the  submission  to  arbitral  award  as  to  existing  regulations  in 
accordance  with  Arts.  2 and  3 of  the  special  agreement,  and  as  to 
further  regulation  by  the  obligation  to  submit  their  reasonableness 
to  an  arbitral  test  in  accordance  with  Art.  4 of  the  agreement. 

:•  It  is  finally  contended  by  the  United  States: 

That  the  United  States  did  not  expressly  agree  that  the 
liberty  granted  to  them  could  be  subjected  to  any  restric- 
tion that  the  grantor  might  choose  to  impose  on  the  ground 
that  in  her  judgment  such  restriction  was  reasonable.  And 
that  while  admitting  that  all  laws  of  a general  character. 


THE  NORTH  ATLANTIC  COAST  FISHERIES  CASE 


169 


controlling  the  conduct  of  men  within  the  territory  of  Great 
Britain,  are  effective,  binding,  and  beyond  objection  by  the 
United  States,  and  competent  to  be  made  upon  the  sole  de- 
termination of  Great  Britain  or  her  colony,  without  ac- 
countability to  anyone  whomsoever;  yet^here  is  somewhere 
a line,  beyond  which  it  is  not  competent  for  Great  Britain 
to  go,  or  beyond  which  she  can  not  rightfully  go,  because  to 
go  beyond  it  would  be  an  invasion  of  the  right  granted  to 
4he  United  States  in  181^  That  the  legal  effect  of  the 
grant  of  1818  was  not  to  leave  the  determination  as  to 
where  that  line  is  to  be  drawn  to  the  uncontrolled  judgment 
of  the  grantor,  either  upon  the  grantor’s  consideration  as  to 
what  would  be  a reasonable  exercise  of  its  sovereignty  over 
the  British  Empire,  or  upon  the  grantor’s  consideration  of 
what  would  be  a reasonable  exercise  thereof  towards  the 


grantee. 


But  this  contention  is  founded  on  assumptions,  which  this 
tribunal  can  not  accept  for  the  following  reasons  in  addition  to 
those  already  set  forth: 

(a)  Because  the  line  by  which  the  respective  rights  of  both 
parties  accruing  out  of  the  treaty  are  to  be  circumscribed,  can  refer 
only  to  the  right  granted  by  the  treaty ; that  is  to  say  to  the  liberty 
of  taking,  drying,  and  curing  fish  by  the  American  inhabitants  in 
certain  British  waters  in  common  with  British  subjects,  and  not 
to  the  exercise  of  rights  of  legislation  by  Great  Britain  not  referred 
1o  in  the  treaty; 

(b)  Because  a line  which  would  limit  the  exercise  of  sov- 
ereignty of  a State  within  the  limits  of  its  own  territory,  can  be 
drawn  only  on  the  ground  of  express  stipulation,  and  not  by  im- 
plication from  stipulations  concerning  a different  subject-matter; 

(c)  Because  the  line  in  question  is  drawn  according  to  the  prin- 
ciple of  international  law  that  treaty  obligations  are  to  be  executed 
in  perfect  good  faith,  therefore  excluding  the  right  to  legislate 
at  will  concerning  the  subject-matter  of  the  treaty,  and  limiting  the 
exercise  of  sovereignty  of  the  States  bound  by  a treaty  with  respect 
to  that  subject-matter  to  such  acts  as  are  consistent  with  the  treaty; 

(d)  Because  on  a true  construction  of  the  treaty  the  question 


170 


THE  HAGUE  COURT  REPORTS 


does  not  arise  whether  the  United  States  agreed  that  Great  Britain 
should  retain  her  right  to  legislate  with  regard  to  the  fisheries  in 
her  own  territory;  but  whether  the  treaty  contains  an  abdication  by 
Great  Britain  of  the  right  which  Great  Britain,  as  the  sovereign 
power,  undoubtedly  possessed  when  the  treaty  was  made,  to  regu- 
late those  fisheries; 

(c)  Because  the  right  to  make  reasonable  regulations,  not  in- 
consistent ^\^th  the  obligations  of  the  treaty,  which  is  all  that  is 
claimed  by  Great  Britain,  for  a fishery^  which  both  parties  admit 
requires  regulation  for  its  preser\^ation,  is  not  a restriction  of  or  an 
invasion  of  the  liberty  granted  to  the  inhabitants  of  the  United 
"States.  This  grant  does  not  contain  words  to  justify  the  assump- 
tion that  the  sovereignty  of  Great  Britain  upon  its  own  territoiy' 
was  in  any  way  affected;  nor  can  words  be  found  in  the  treaty 
transferring  any  part  of  that  sovereignty  to  the  United  States. 
Great  Britain  assumed  only  duties  with  regard  to  the  exercise  of 
its  sovereignty.  The  sovereignty  of  Great  Britain  over  the  coastal 
waters  and  territory  of  Newfoundland  remains  after  the  treaty  as 
unimpaired  as  it  was  before.  But  from  the  treaty  results  an  ob- 
ligator}' relation  whereby  the  right  of  Great  Britain  to  exercise  its 
sovereignty  by  making  regulations  is  limited  to  such  regulations  as 
are  made  in  good  faith,  and  are  not  in  violation  of  the  treaty ; 

(/)  Finally,  to  hold  that  tlie  United  States,  the  grantee  of  the 
fishing  right,  has  a voice  in  the  preparation  of  fishery  legislation 
involves  the  recognition  of  a right  in  that  country  to  participate  in 
the  internal  leg;islation  of  Great  Britain  and  her  colonies,  and  to 
that  extent  would  reduce  these  countries  to  a state  of  dependence. 

While  therefore  unable  to  concede  the  claim  of  the  United  States 
as  based  on  the  treaty,  this  tribunal  considers  that  such  claim  has 
been  and  is  to  some  extent,  conceded  in  the  relations  now'  existing 
between  the  two  parties.  Whatever  may  have  been  the  situation 
under  the  treaty  of  1818  standing  alone,  the  exercise  of  the  right  of 
regyilation  inherent  in  Great  Britain  has  been,  and  is,  limited  by 
the  repeated  recognition  of  the  obligations  already  referred  to,  by 
the  limitations  and  liabilities  accepted  in  the  special  agreement,  by 
the  unequivocal  position  assumed  by  Great  Britain  in  the  presenta- 
tion of  its  case  before  this  tribunal,  and  by  the  consequent  view'  of 
this  tribunal  that  it  would  be  consistent  w'ith  all  the  circumstances, 


THE  NORTH  ATLANTIC  COAST  FISHERIES  CASE 


171 


as  revealed  by  this  record,  as  to  the  duty  of  Great  Britain,  that  she 
should  submit  the  reasonableness  of  any  future  regulation  to  such 
an  impartial  arbitral  test,  affording  full  opportunity  therefor,  as  is 
hereafter  recommended  under  the  authority  of  Article  4 of  the 
special  agreement,  whenever  the  reasonableness  of  any  regulation  is 
objected  to  or  challenged  by  the  United  States  in  the  manner,  and 
within  the  time  hereinafter  specified  in  the  said  recommendation. 
/iSlow  therefore  this  tribunal  decides  and  awards  as  follows: 

/ The  right  of  Great  Britain  to  make  regulations  without  the  con- 
Isent  of  the  United  States}  as  to  the  exercise  of  the  liberty  to  take 
fish  referred  to  in  Article  1 of  the  treaty  of  October  20th,  1818,  in 
the  form  of  municipal  laws,  ordinances,  or  rules  of  Great  Britain, 
Canada,  or  Newfoundland  is  inherent  to  the  sovereignty  of  Great 
Britain. 

The  exercise  of  that  right  by  Great  Britain  is,  however,  limited 
by  the  said  treaty  in  respect  of  the  said  liberties  therein  granted  to 
the  inhabitants  of  the  United  States  in  that  such  regulations  must 
'-.be  made  bona  fide  and  must  not  be  in  violation  of  the  said  treaty 
^ Regulations  which  are  (1)  appropriate  or  necessary  for  the  pro- 
/ tection  and  preservation  of  such  fisheries,  or  (2)  desirable  or  neces- 
sary on  grounds  of  public  order  and  morals  without  unnecessarily 
interfering  with  the  fishery  itself,  and  in  both  cases  equitable  and 
fair  as  between  local  and  American  fishermen,  and  not  so  framed 
as  to  give  unfairly  an  advantage  to  the  former  over  the  latter  class, 
are  not  inconsistent  with  the  obligation  to  execute  the  treaty  in 
1 good  faith,  and  are  therefore  reasonable  and  not  in  violation  of  the 
' treaty. 

For  the  decision  of  the  question  whether  a regulation  is  or  is  not 
reasonable,  as  being  or  not  in  accordance  with  the  dispositions  of 
the  treaty  and  not  in  violation  thereof,  the  treaty  of  1818  contains 
no  sp>ecial  provision.  The  settlement  of  differences  in  this  respect 
that  might  arise  thereafter  was  left  to  the  ordinary  means  of  diplo- 
matic intercourse.  By  reason,  however,  of  the  form  in  which  Ques- 
tion I is  put,  and  by  further  reason  of  the  admission  of  Great 
Britain  by  her  counsel  before  this  tribunal  that  it  is  not  now  for 
either  of  the  parties  to  the  treaty  to  determine  the  reasonableness 
of  any  regulation  made  by  Great  Britain,  Canada,  or  Newfound- 
land, the  reasonableness  of  any  such  regulation,  if  contested,  must 


172 


THE  HAGUE  COURT  REPORTS 


be  decided  not  by  either  of  the  parties,  but  by  an  impartial  authority 
in  accordance  with  the  principles  hereinabove  laid  down,  and  in 
the  manner  proposed  in  the  recommendations  made  by  the  tribunal 
in  virtue  of  Article  4 of  the  agreement. 

The  tribunal  further  decides  that  Article  4 of  the  agreement  is, 
as  stated  by  counsel  of  the  respective  parties  at  the  argument,  per- 
manent in  its  effect,  and  not  terminable  by  the  expiration  of  the 
general  arbitration  treaty  of  1908,  between  Great  Britain  and  the 
United  States. 

In  execution,  therefore,  of  the  responsibilities  imposed  upon  this 
tribunal  in  regard  to  Articles  2,  3,  and  4 of  the  special  agreement, 
we  hereby  pronounce  in  their  regard  as  follows: 

As  TO  Article  2 

Pursuant  to  the  provisions  of  this  article,  hereinbefore  cited, 
either  party  has  called  the  attention  of  this  tribunal  to  acts  of  the 
other  claimed  to  be  inconsistent  with  the  true  interpretation  of  the 
treaty  of  1818. 

But  in  response  to  a request  from  the  tribunal,  recorded  in 
Protocol  No.  XXVI  of  19th  July,  for  an  exposition  of  the  grounds 
of  such  objections,  the  parties  replied  as  reported  in  Protocol  No. 
XXX  of  28th  July  to  the  following  effect: 

His  Majesty’s  Government  considered  that  it  would  be  unneces- 
sary to  call  upon  the  tribunal  for  an  opinion  under  the  second  clause 
of  Article  2,  in  regard  to  the  executive  act  of  the  United  States  of 
America  in  sending  war-ships  to  the  territorial  waters  in  question,  in 
view  of  the  recognized  motives  of  the  United  States  of  America  in 
taking  this  action  and  of  the  relations  maintained  by  their  represen- 
tatives with  the  local  authorities.  And  this  being  the  sole  act  to 
which  the  attention  of  this  tribunal  has  been  called  by  His  Maj- 
esty’s Government,  no  further  action  in  their  behalf  is  required 
from  this  tribunal  under  Article  2. 

The  United  States  of  America  presented  a statement  in  which 
their  claim  that  specific  provisions  of  certain  legislative  and  execu- 
tive acts  of  the  Governments  of  Canada  and  Newfoundland  were 
inconsistent  with  the  true  interpretation  of  the  treaty  of  1818  was 
based  on  the  contention  that  these  provisions  were  not  “reasonable” 
within  the  meaning  of  Question  1. 


THE  NORTH  ATLANTIC  COAST  FISHERIES  CASE 


173 


After  calling  upon  this  tribunal  to  express  an  opinion  on  these 
acts,  pursuant  to  the  second  clause  of  Article  2,  the  United  States 
of  America  pointed  out  in  that  statement  that  under  Article  3 any 
question  regarding  the  reasonableness  of  any  regulation  might  be 
referred  by  the  tribunal  to  a commission  of  expert  specialists,  and 
expressed  an  intention  of  asking  for  such  reference  under  certain 
circumstances. 

The  tribunal  having  carefully  considered  the  counter-statement 
presented  on  behalf  of  Great  Britain  at  the  session  of  August  2nd, 
is  of  opinion  that  the  decision  on  the  reasonableness  of  these  regula- 
tions requires  expert  information  about  the  fisheries  themselves  and 
an  examination  of  the  practical  effect  of  a great  number  of  these 
provisions  in  relation  to  the  conditions  surrounding  the  exercise 
of  the  liberty  of  fishery  enjoyed  by  the  inhabitants  of  the  United 
States,  as  contemplated  by  Article  3.  No  further  action  on  behalf 
of  the  United  States  is  therefore  required  from  this  tribunal  under 
Article  2. 

As  TO  Article  3 

As  provided  in  Article  3,  hereinbefore  cited  and  above  referred 
to,  “any  question  regarding  the  reasonableness  of  any  regulation, 
or  otherwise,  which  requires  an  examination  of  the  practical  effect 
of  any  provisions  surrounding  the  exercise  of  the  liberty  of  fishery 
enjoyed  by  the  inhabitants  of  the  United  States,  or  which  requires 
expert  information  about  the  fisheries  themselves,  may  be  referred 
by  this  tribunal  to  a commission  of  expert  specialists;  one  to  be 
designated  by  each  of  the  parties  hereto  and  the  third,  who  shall 
not  be  a national  of  either  party,  to  be  designated  by  the  tribunal.” 

The  tribunal  now  therefore  calls  upon  the  parties  to  designate 
within  one  month  their  national  commissioners  for  the  expert  ex- 
amination of  the  questions  submitted. 

As  the  third  non-national  commissioner  this  tribunal  designates 
Doctor  P.  P.  C.  Hoek,  scientific  adviser  for  the  fisheries  of  the 
Netherlands,  and  if  any  necessity  arises  therefor  a substitute  may 
be  appointed  by  the  president  of  this  tribunal. 

After  a reasonable  time,  to  be  agreed  on  by  the  parties,  for  the 
expert  commission  to  arrive  at  a conclusion,  by  conference,  or,  if 
necessary,  by  local  inspection,  the  tribunal  shall,  if  convoked  by  the 
president  at  the  request  of  either  party,  thereupon  at  the  earliest 


174 


THE  HAGUE  COURT  REPORTS 


convenient  date,  reconvene  to  consider  the  report  of  the  commission, 
and  if  it  be  on  the  whole  unanimous  shall  incorporate  it  in  the 
award.  If  not  on  the  whole  unanimous,  i.  e.,  on  all  points  which  in 
the  opinion  of  the  tribunal  are  of  essential  importance,  the  tribunal 
shall  make  its  award  as  to  the  regulations  concerned  after  consid- 
eration of  the  conclusions  of  the  expert  commissioners  and  after 
hearing  argument  by  counsel. 

But  while  recognizing  its  responsibilities  to  meet  the  obligations 
imposed  on  it  under  Article  3 of  the  special  agreement,  the  tribunal 
hereby  recommends  as  an  alternative  to  having  recourse  to  a recon- 
vention of  this  tribunal,  that  the  parties  should  accept  the  unani- 
mous opinion  of  the  commission  or  the  opinion  of  the  non-national 
commissioner  on  any  points  in  dispute  as  an  arbitral  award  rendered 
under  the  provisions  of  Chapter  IV  of  the  Hague  Convention  of 
1907. 

As  TO  Article  4 

Pursuant  to  the  provisions  of  this  article,  hereinbefore  cited,  this 
tribunal  recommends  for  the  consideration  of  the  parties  the  follow- 
ing rules  and  method  of  procedure  under  which  all  questions  which 
may  arise  in  future  regarding  the  exercise  of  the  liberties  above  re- 
ferred to  may  be  determined  in  accordance  with  the  principles  laid 
down  in  this  award. 

1 

All  future  municipal  laws,  ordinances,  or  rules  for  the  regulation 
of  the  fishery  by  Great  Britain  in  respect  of  ( 1 ) the  hours,  days  or 
seasons  when  fish  may  be  taken  on  the  treaty  coasts;  (2)  the 
method,  means  and  implements  used  in  the  taking  of  fish  or  in 
carrying  on  fishing  operations;  (3)  any  other  regulation  of  a simi- 
lar character  shall  be  published  in  the  London  Gazette  two  months 
before  going  into  operation. 

Similar  regulations  by  Canada  or  Newfoundland  shall  be  simi- 
larly published  in  the  Canada  Gazette  and  the  Newfoundland 
Gazette  respectively. 

2 

If  the  Government  of  the  United  States  considers  any  such  laws 
or  regulations  inconsistent  with  the  treaty  of  1818,  it  is  entitled  to 
so  notify  the  Government  of  Great  Britain  within  the  two  months 
referred  to  in  Rule  No.  1. 


THE  NORTH  ATLANTIC  COAST  FISHERIES  CASE 


175 


3 

Any  law  or  regulation  so  notified  shall  not  come  into  effect  with 
respect  to  inhabitants  of  the  United  States  until  the  permanent 
mixed  fishery  commission  has  decided  that  the  regulation  is  rea- 
sonable within  the  meaning  of  this  award. 


4 

Permanent  mixed  fishery  commissions  for  Canada  and  New- 
foundland respectively  shall  be  established  for  the  decision  of  such 
questions  as  to  the  reasonableness  of  future  regulations,  as  contem- 
plated by  Article  4 of  the  special  agreement;  these  commissions 
shall  consist  of  an  expert  national  appointed  by  either  party  for 
five  years.  The  third  member  shall  not  be  a national  of  either 
party;  he  shall  be  nominated  for  five  years  by  agreement  of  the 
parties,  or  failing  such  agreement  within  two  months,  he  shall  be 
nominated  by  Her  Majesty  the  Queen  of  the  Netherlands.  The 
two  national  members  shall  be  convoked  by  the  Government  of 
Great  Britain  within  one  month  from  the  date  of  notification  by 
Government  of  the  United  States. 

5 

The  two  national  members  having  failed  to  agree  within  one 
month,  within  another  month  the  full  commission,  under  the  presi- 
dency of  the  umpire,  is  to  be  convoked  by  Great  Britain.  It  must 
deliver  its  decision,  if  the  two  Governments  do  not  agree  otherwise, 
at  the  latest  in  three  months.  The  umpire  shall  conduct  the  pro- 
cedure in  accordance  with  that  provided  in  Chapter  IV  of  the  Con- 
vention for  the  pacific  settlement  of  international  disputes,  except 
in  so  far  as  herein  otherwise  provided. 

6 

The  form  of  convocation  of  the  commission  including  the  terms 
of  reference  of  the  question  at  issue  shall  be  as  follows : “The  pro- 
vision hereinafter  fully  set  forth  of  an  act  dated , 

published  in  the , has  been  notified  to  the  Govern- 

ment of  Great  Britain  by  the  Government  of  the  United  States, 


176 


THE  HAGUE  COURT  REPORTS 


under  date  of  , as  provided  by  the  aAvard  of  the 

Hague  tribunal  of  September  7th,  1910. 

Pursuant  to  the  provisions  of  that  award  the  Government  of 
Great  Britain  hereby  convokes  the  permanent  mixed  fishery 

commission  for  (Canada) composed  of  , 

commissioner  for  the  United  States  of  America,  and  of 
, commissioner  for  which  shall 

(Newfoundland)  ' 

meet  at  and  render  a decision  within  one  month 

as  to  whether  the  provision  so  notified  is  reasonable  and  consistent 
with  the  treaty  of  1818,  as  interpreted  by  the  award  of  the  Hague 
tribunal  of  September  7th,  1910,  and  if  not,  in  what  respect  it  is 
unreasonable  and  inconsistent  therewith. 

Failing  an  agreement  on  this  question  within  one  month  the 
commission  shall  so  notify  the  Government  of  Great  Britain  in 
order  that  the  further  action  required  by  that  award  may  be  taken 
for  the  decision  of  the  above  question. 

The  provision  is  as  follows:  > ” 


7 

The  unanimous  decision  of  the  two  national  commissioners,  or 
the  majority  decision  of  the  umpire  and  one  commissioner,  shall  be 
final  and  binding. 

QUESTION  2 

Have  the  inhabitants  of  the  United  States,  while  exercising  the 
liberties  referred  to  in  said  article,  a right  to  employ  as  members 
of  the  fishing  crews  of  their  vessels  persons  not  inhabitants  of  the 
United  States? 

In  regard  to  this  question  the  United  States  claim  in  substance : 

1.  That  the  liberty  assured  to  their  inhabitants  by  the  treaty 
plainly  includes  the  right  to  use  all  the  means  customary  or 
appropriate  for  fishing  upon  the  sea,  not  only  ships  and  nets 
and  boats,  but  crews  to  handle  the  ships  and  the  nets  and  the 
boats : 

2.  That  no  right  to  control  or  limit  the  means  which  these  in- 
habitants shall  use  in  fishing  can  be  admitted  unless  it  is  pro- 


THE  NORTH  ATLANTIC  COAST  FISHERIES  CASE 


177 


vided  in  the  terms  of  the  treaty  and  no  right  to  question  the 
nationality  or  inhabitancy  of  the  crews  employed  is  contained 
in  the  terms  of  the  treaty. 


And  Great  Britain  claims: 

1.  That  the  treaty  confers  the  liberty  to  inhabitants  of  the 
United  States  exclusively; 

2.  That  the  Governments  of  Great  Britain,  Canada  or  New- 
foundland may,  without  infraction  of  the  treaty,  prohibit  per- 
sons from  engaging  as  fishermen  in  American  vessels. 


Now  considering  (1)  that  the  liberty  to  take  fish  is  an  economic 
fight  attributed  by  the  treaty;  (2][that  it  is  attributed  to  inhabitants 
foi  the  United  States,  without  any  mention  of  their  nationality;  (3) 
that  the  exercise  of  an  economic  right  includes  the  right  to  employ 
servants;  (4)  that  the  right  of  employing  servants  has  not  been 
limited  by  the  treaty  to  the  employment  of  persons  of  a distinct 
^nationality  or  inhabitancy^  ( 5 ) that  the  liberty  to  take  fish  as  an 
economic  liberty  refers  not  only  to  the  individuals  doing  the  manual 
act  of  fishing,  but  also  to  those  for  whose  profit  the  fish  are  taken. 

But  considering,  that  the  treaty  does  not  intend  to  grant  to  in- 
dividual persons  or  to  a class  of  persons  the  liberty  to  take  fish  in 
certain  waters  “in  common,”  that  is  to  say  in  company,  with  in- 
dividual British  subjects,  in  the  sense  that  no  law  could  forbid 
British  subjects  to  take  service  on  American  fishing  ships;  (2) 
that  the  treaty  intends  to  secure  to  the  United  States  a share  of  the 
fisheries  designated  therein,  not  only  in  the  interest  of  a certain 
class  of  individuals,  but  also  in  the  interest  of  both  the  United 
States  and  Great  Britain,  as  appears  from  the  evidence  and  notably 
from  the  correspondence  between  Mr.  Adams  and  Lord  Bathurst 
in  1815 ; (3)  that  the  inhabitants  of  the  United  States  do  not  derive 
the  liberty  to  take  fish  directly  from  the  treaty,  but  from  the  United 
States  Government  as  party  to  the  treaty  with  Great  Britain  and 
moreover  exercising  the  right  to  regulate  the  conditions  under  which 
its  inhabitants  may  enjoy  the  granted  liberty;  (4)  that  it  is  in  the 
interest  of  the  inhabitants  of  the  United  States  that  the  fishing 
liberty  granted  to  them  be  restricted  to  exercise  by  them  and  re- 
moved from  the  enjoyment  of  other  aliens  not  entitled  by  this 
treaty  to  participate  in  the  fisheries ; ( 5 ) that  such  restrictions  have 


178 


THE  HAGUE  COURT  REPORTS 


been  throughout  enacted  in  the  British  Statute  of  June  15,  1819, 
and  that  of  June  3,  1824,  to  this  effect,  that  no  alien  or  stranger 
whatsoever  shall  fish  in  the  waters  designated  therein,  except  in  so 
far  as  by  treaty  thereto  entitled,  and  that  this  exception  will,  in 
virtue  of  the  treaty  of  1818,  as  hereinabove  interpreted  by  this 
award,  exempt  from  these  statutes  American  fishermen  fishing  by 
the  agency  of  non-inhabitant  aliens  employed  in  their  service;  (6) 
that  the  treaty  does  not  affect  the  sovereign  right  of  Great  Britain 
as  to  aliens,  non-inhabitants  of  the  United  States,  nor  the  right  of 
Great  Britain  to  regulate  the  engagement  of  British  subjects,  while 
these  aliens  or  British  subjects  are  on  British  territory. 
f Now,  therefore,  in  view  of  the  preceding  considerations  this  tri- 
bunal is  of  opinion  that  the  inhabitants  of  the  United  States  while 
exercising  the  liberties  referred  to  in  the  said  article  have  a right 
to  employ,  as  members  of  the  fishing  crews  of  their  vessels,  persons 
not  inhabitants  of  the  United  States. 

But  in  view  of  the  preceding  considerations  the  tribunal,  to  pre- 
vent any  misunderstanding  as  to  the  effect  of  its  award,  expresses 
the  opinion  that  non-inhabitants  employed  as  members  of  the  fish- 
ing crews  of  United  States  vessels  derive  no  benefit  or  immunity 
from  the  treaty  and  it  is  so  decided  and  awarded. 

QUESTION  3 

" Can  the  exercise  by  the  inhabitants  of  the  United  States  of  the 
liberties  referred  to  in  the  said  article  be  subjected,  without  the 
consent  of  the  United  States,  to  the  requirements  of  entry  or  report 
at  custom-houses  or  the  payment  of  light  or  harbor  or  other  dues, 
or  to  any  other  similar  requirement  or  condition  or  exaction  ? 

The  tribunal  is  of  opinion  as  follows : 

It  is  obvious  that  the  liberties  referred  to  in  this  question  are 
those  that  relate  to  taking  fish  and  to  drying  and  curing  fish  on 
certain  coasts  as  prescribed  in  the  treaty  of  October  20,  1818.  The 
exercise  of  these  liberties  by  the  inhabitants  of  the  United  States 
in  the  prescribed  waters  to  which  they  relate,  has  no  reference  to 
any  commercial  privileges  which  may  or  may  not  attach  to  such 
vessels  by  reason  of  any  supposed  authority  outside  the  treaty, 
which  itself  confers  no  commercial  privileges  whatever  upon  the 


THE  NORTH  ATLANTIC  COAST  FISHERIES  CASE 


179 


inhabitants  of  the  United  States  or  the  vessels  in  which  they  may 
exercise  the  fishing  liberty.  \It  follows,  therefore,  that  when  the 
inhabitants  of  the  United  States  are  not  seeking  to  exercise  the 
commercial  privileges  accorded  to  trading  vessels  for  the  vessels  in 
which  they  are  exercising  the  granted  liberty  of  fishing,  they  ought 
not  to  be  subjected  to  requirements  as  to  report  and  entry  at  cus- 
tom-houses that  are  only  appropriate  to  the  exercise  of  commercial 
privileges,  j The  exercise  of  the  fishing  liberty  is  distinct  from  the 
exercise  oi  commercial  or  trading  privileges  and  it  is  not  competent 
for  Great  Britain  or  her  colonies  to  impose  upon  the  former  exac- 
tions only  appropriate  to  the  latter.  The  reasons  for  the  require- 
ments enumerated  in  the  case  of  commercial  vessels,  have  no  rela- 
tion to  the  case  of  fishing  vessels. 

We  think,  however,  that  the  requirement  that  American  fishing 
vessels  should  report,  if  proper  conveniences  and  an  opportunity 
for  doing  so  are  provided,  is  not  unreasonable  or  inappropriateJ 
Such  a report,  while  serving  the  purpose  of  a notification  of  the 
presence  of  a fishing  vessel  in  the  treaty  waters  for  the  purpose 
of  exercising  the  treaty  liberty,  while  it  gives  an  opportunity  for  a 
proper  surveillance  of  such  vessel  by  revenue  officers,  may  also 
serve  to  afford  to  such  fishing  vessel  protection  from  interference 
in  the  exercise  of  the  fishing  liberty.  There  should  be  no  such  re- 
quirement, however,  unless  reasonably  convenient  opportunity 
therefor  be  afforded  in  person  or  by  telegraph,  at  a custom-house 
or  to  a customs  official. 

/ The  tribunal  is  also  of  opinion  that  light  and  harbor  dues,  if  not 
f imposed  on  Newfoundland  fishermen,  should  not  be  imposed  on 
I American  fishermen  while  exercising  the  liberty  granted  by  the 
\ treaty.  To  impose  such  dues  on  American  fishermen  only  would 
constitute  an  unfair  discrimination  between  them  and  Newfound- 
land fishermen^  and  one  inconsistent  with  the  liberty  granted  to 
American  fishermen  to  take  fish,  etc.,  “in  common  with  the  subjects 
of  His  Britannic  Majesty.” 

Further,  the  tribunal  considers  that  the  fulfilment  of  the  require- 
ment as  to  report  by  fishing  vessels  on  arrival  at  the  fishery  would 
be  greatly  facilitated  in  the  interests  of  both  parties  by  the  adoption 
of  a system  of  registration,  and  distinctive  marking  of  the  fishing 


180 


THE  HAGUE  COURT  REPORTS 


boats  of  both  parties,  analogous  to  that  established  by  Articles  5 to 
13,  inclusive,  of  the  international  convention  signed  at  The  Hag^e, 
8 May,  1882,  for  the  regulation  of  the  North  Sea  fisheries, 
yrhe  tribunal  therefore  decides  and  awards  as  follows : 
j The  requirement  that  an  American  fishing  vessel  should  report, 
if  proper  conveniences  for  doing  so  are  at  hand,  is  not  unreason- 
able, for  the  reasons  stated  in  the  foregoing  opinio^  There  should 
be  no  such  requirement,  however,  unless  there  be  reasonably  con- 
venient opportunity  afforded  to  report  in  person  or  by  telegraph, 
either  at  a custom-house  or  to  a customs  official. 

/^But  the  exercise  of  the  fishing  liberty  by  the  inhabitants  of  the 
United  States  should  not  be  subjected  to  the  purely  commercial 
formalities  of  report,  entrj'  and  clearance  at  a custom-house,  nor 
to  light,  harbor  or  other  dues  not  imposed  upon  Newfoundland 
fishermen. 

QUESTION  4 

Under  the  provision  of  the  said  article  that  the  American  fisher- 
men shall  be  admitted  to  enter  certain  bays  or  harbors  for  shelter, 
repairs,  wood,  or  water,  and  for  no  other  purpose  whatever,  but 
that  they  shall  be  under  such  restrictions  as  may  be  necessary  to 
prevent  their  taking,  drying,  or  curing  fish  therein  or  in  any  other 
manner  whatever  abusing  the  privileges  thereby  reserved  to  them, 
is  it  permissible  to  impose  restrictions  making  the  exercise  of  such 
privileges  conditional  upon  the  payment  of  light  or  harbor  or  other 
dues,  or  entering  or  reporting  at  custom-houses  or  any  similar 
conditions? 

/The  tribunal  is  of  opinion  that  the  provision  in  the  first  article 
of  the  treaty  of  October  20th,  1818,  admitting  American  fishermen 
to  enter  certain  bays  or  harbors  for  shelter,  repairs,  wood  and 
water,  and  for  no  other  purpose  whatever,  is  an  exercise  in  large 
measure  of  those  duties  of  hospitality  and  humanity  which  all  civ- 
ilized nations  impose  upon  themselves  and  expect  the  performance 
of  from  others.^  The  enumerated  purposes  for  which -entry  is  per- 
mitted all  relate  to  the  exigencies  in  which  those  who  pursue  their 
perilous  calling  on  the  sea  may  be  involved.  The  proviso  which 
appears  in  the  first  article  of  the  said  treaty  immediately  after  the 
so-called  renunciation  clause,  was  doubtless  due  to  a recognition  by 


THE  NORTH  ATLANTIC  COAST  FISHERIES  CASE 


181 


Great  Britain  of  what  was  expected  from  the  humanity  and  civiliza- 
tion of  the  then  leading  commercial  nation  of  the  world.  iTo  im- 
^pose  restrictions  making  the  exercise  of  such  privileges  conditional 
upon  the  payment  of  light,  harbor  or  other  dues,  or  entering  and 
reporting  at  custom-houses,  or  any  similar  conditions  would  be  in- 
consistent with  the  grounds  upon  which  such  privileges  rest  and 
therefore  is  not  permissible.^ 

And  it  is  decided  and  awarded  that  such  restrictions  are  not 
( permissible. 

It  seems  reasonable,  however,  in  order  that  these  privileges  ac- 
corded by  Great  Britain  on  these  grounds  of  hospitality  and  human- 
ity should  not  he  abused,  that  the  American  fishermen  entering 
such  bays  for  any  of  the  four  purposes  aforesaid  and  remaining 
more  than  48  hours  therein,  should  be  required,  if  thought  neces- 
sary by  Great  Britain  or  the  Colonial  Government,  to  report,  either 
in  person  or  by  telegraph,  at  a custom-house  or  to  a customs  official, 
if  reasonably  convenient  opportunity  therefor  is  afforded. 

And  it  is  so  decided  and  awarded. 


QUESTION  5 

(From  where  must  be  measured  the  “three  marine  miles  of  any  of 
the  coasts,  bays,  creeks,  or  harbors”  referred  to  in  the  said  article? 


In  regard  to  this  question.  Great  Britain  claims  that  the  renun- 
ciation applies  to  all  bays  generally  and 

VThe  United  States  contend  that  it  applies  to  bays  of  a certain 
class  or  condition. 


Now,  considering  that  the  treaty  used  the  general  term  “bays” 
I without  qualification,  the  tribunal  is  of  opinion  that  these  words  of 
I the  treaty  must  be  interpreted  in  a general  sense  as  applying  to 
\every  bay  on  the  coast  in  question^hat  might  be  reasonably  sup- 
posed to  have  been  considered  as  a bay  by  the  negotiators  of  the 
treaty  under  the  general  conditions  then  prevailing,/ unless  the 
I United  States  can  adduce  satisfactory  proof  that  any  re^rictions  or 
I qualifications  of  the  general  use  of  the  term  were  or  should  have 
V^en  present  to  their  minds. 


182 


THE  HAGUE  COURT  REPORTS 


/ And  for  the  purpose  of  such  proof  the  United  States  contend : 

/ 1st.  That  while  a State  may  renounce  the  treaty  right  to  fish  in 
y foreign  territorial  waters,  it  can  not  renounce  the  natural 
right  to  fish  on  the  high  seas. 

V»But  the  tribunal  is  unable  to  agree  with  this  contention.  Be- 
cause though  a State  can  not  grant  rights  on  the  high  seas^t  cer- 

Itainly  can  abandon  the  exercise  of  its  right  to  fish  on  the  high  seas 
within  certain  definite  limits^  Such  an  abandonment  was  made  with 
respect  to  their  fishing  rights  in  the  waters  in  question  by  France 
and  Spain  in  1763.  \By  a convention  between  the  United  Kingdom 
/ and  the  United  States  in  1846,  the  two  countries  assumed  owner- 
l ship  over  waters  in  Fuca  Straits  at  distances  from  "he  shore  as 
'great  as  17  miles^ 

The  United  States  contend  moreover: 

2d.  That  by  the  use  of  the  term  “liberty  to  fish”  the  United 
States  manifested  the  intention  to  renounce  the  liberty  in 
the  waters  referred  to  only  in  so  far  as  that  liberty  was  de- 
pendent upon  or  derived  from  a concession  on  the  part  of 
Great  Britain,  and  not  to  renounce  the  right  to  fish  in  those 
waters  where  it  was  enjoyed  by  virtue  of  their  natural  right 
as  an  independent  State. 

But  the  tribunal  is  unable  to  agree  with  this  contention : 

(a)  Because  the  term  “liberty  to  fish”  was  used  in  the  renun- 
ciatory clause  of  the  treaty  of  1818  because  the  same  term  had  been 
previously  used  in  the  treaty  of  1783  which  gave  the  liberty;  and 
it  was  proper  to  use  in  the  renunciation  clause  the  same  term  that 
was  used  in  the  grant  with  respect  to  the  object  of  the  grant ; and, 
in  view  of  the  terms  of  the  grant,  it  would  have  been  improper  to 
use  the  term  “right”  in  the  renunciation.  Therefore  the  conclu- 
sion drawn  from  the  use  of  the  term  “liberty”  instead  of  the  term 
“right”  is  not  justified; 

(&)  Because  the  term  “liberty”  was  a term  properly  applicable 
tc  the  renunciation  which  referred  not  only  to  fishing  in  the  terri- 
torial waters  but  also  to  drying  and  curing  on  the  shore.  This 
latter  right  was  undoubtedly  held  under  the  provisions  of  the  treaty 


THE  NORTH  ATLANTIC  COAST  FISHERIES  CASE 


183 


V 


and  was  not  a right  accruing  to  the  United  States  by  virtue  of  any 
principle  of  international  law. 

3d.  The  United  States  also  contend  that  the  term  “bays  of  His 
Britannic  Majesty’s  Dominions”  in  the  renunciatory  clause 
must  be  read  as  including  only  those  bays  which  were  under 
the  territorial  sovereignty  of  Great  Britain. 

But  the  tribunal  is  unable  to  accept  this  contention: 

(a)  Because  the  description  of  the  coast  on  which  the  fishery 
is  to  be  exercised  by  the  inhabitants  of  the  United  States  is  ex- 
pressed throughout  the  treaty  of  1818  in  geographical  terms  and 
not  by  reference  to  political  control;  the  treaty  describes  the  coast 
as  contained  between  capes; 

(b)  Because  to  express  the  political  concept  of  dominion  as 
equivalent  to  sovereignty,  the  word  “dominion”  in  the  singular 
would  have  been  an  adequate  term  and  not  “dominions”  in  the 
plural;  this  latter  term  having  a recognized  and  well-settled  mean- 
ing as  descriptive  of  those  portions  of  the  earth  which  owe  political 
allegiance  to  His  Majesty;  e.  g.,  “His  Britannic  Majesty’s  do- 
minions beyond  the  seas.” 

'"4th.  It  has  been  further  contended  by  the  United  States  that  the 
renunciation  applies  only  to  bays  six  miles  or  less  in  width 
inter  fauces  terrae,  those  bays  only  being  territorial  bays, 
because  the  three-mile  rule  is,  as  shown  by  this  treaty,  a 
t principle  of  international  law  applicable  to  coasts  and  should 

I be  strictly  and  systematically  applied  to  bays, 

i 

^^t  the  tribunal  is  unable  to  agree  with  this  contention : 

(a)  Because  admittedly  the  geographical  character  of  a bay 
contains  conditions  which  concern  the  interests  of  the  territorial 
sovereign  to  a more  intimate  and  important  extent  than  do  those 
^nnected  with  the  open  coast.  ^Thus  conditions  of  national  and 
Territorial  integrity,  of  defense,  of  commerce  and  of  industry  are 
lall  vitally  concerned  with  the  control  of  the  bays  penetrating  the 
iiational  coast  line.)  This  interest  varies,  speaking  generally  in  pro- 
portion to  the  penetration  inland  of  the  bay;  but  as  no  principle 


184 


THE  HAGUE  COURT  REPORTS 


of  international  law  recognizes  any  specified  relation  between  the 
concavity  of  the  bay  and  the  requirements  for  control  by  the  terri- 
torial sovereignty,  this  tribunal  is  unable  to  qualify  by  the  applica- 
tion of  any  new  principle  its  interpretation  of  the  treaty  of  1818 
as  excluding  bays  in  general  from  the  strict  and  systematic  appli- 
cation of  the  three-mile  rule ; nor  can  this  tribunal  take  cognizance 
in  this  connection  of  other  principles  concerning  the  territorial 
sovereignty  over  bays  such  as  ten-mile  or  twelve-mile  limits  of 
exclusion  based  on  international  acts  subsequent  to  the  treaty  of 
1818  and  relating  to  coasts  of  a different  configuration  and  condi- 
tions of  a different  character; 

' (b)  Because  the  opinion  of  jurists  and  publicists  quoted  in  the 

f proceedings  conduce  to  the  opinion  that  speaking  generally  the 
\ythree-mile  rule  should  not  be  strictly  and  systematically  applied 
to  bays; 

(c)  Because  the  treaties  referring  to  these  coasts,  antedating 
the  treaty  of  1818,  made  special  provisions  as  to  bays,  such  as  the 
treaties  of  1686  and  1713  between  Great  Britain  and  France,  and 
especially  the  treaty  of  1778  between  the  United  States  and  France. 
Likewise  Jay’s  treaty  of  1794  Art.  25,  distinguished  bays  from 
the  space  “within  cannon-shot  of  the  coast”  in  regard  to  the  right 
of  seizure  in  times  of  war.  If  the  proposed  treaty  of  1806  and  the 
treaty  of  1818  contained  no  disposition  to  that  effect,  the  e.xplana- 
tion  may  be  found  in  the  fact  that  the  first  extended  the  marginal 
belt  to  five  miles,  and  also  in  the  circumstance  that  the  American 
proposition  of  1818  in  that  respect  was  not  limited  to  “l^avs,”  but 
extended  to  “chambers  formed  by  headlands”  and  to  “five  marine 
miles  from  a right  line  from  one  headland  to  another,"  a proposition 
which  in  the  times  of  the  Napoleonic  wars  would  have  affected  to  a 
very  large  extent  the  operations  of  the  British  navy; 

(d)  Because  it  has  not  been  shown  by  the  documents  and  corre- 
spondence in  evidence  here  that  the  application  of  the  three-mile 
rule  to  bays  was  present  to  the  minds  of  the  negotiators  in  1818 
and  they  could  not  reasonably  have  been  expected  either  to  pre- 
sume it  or  to  provide  against  its  presumption; 

(c)  Because  it  is  difficult  to  explain  the  words  in  Art.  3 of  the 
treaty  under  interpretation  “country'  . . . together  with  its 


THE  NORTH  ATLANTIC  COAST  FISHERIES  CASE 


185 


bays,  harbors  and  creeks”  otherwise  than  that  all  bays  without 
distinction  as  to  their  width  were,  in  the  opinion  of  the  negotia- 
tors, part  of  the  territory; 

C(f)  Because  from  the  information  before  this  tribunal  it  is  evi- 
dent that  the  three-mile  rule  is  not  applied  to  bays  strictly  or  sys- 
tematically either  by  the  United  States  or  by  any  other  Power; 

(g)  It  has  been  recognized  by  the  United  States  that  bays  stand 
apart,  and  that  in  respect  of  them  territorial  jurisdiction  may  be 
exercised  farther  than  the  marginal  belt  in  the  case  of  Delaware 
Bay  by  the  report  of  the  United  States  Attorney  General  of  May 
19th,  1793;  and  the  letter  of  Mr.  Jefferson  to  Mr.  Genet  of  Novem- 
ber 8th,  1793,  declares  the  bays  of  the  United  States  generally  to  be, 
“as  being  landlocked,  within  the  body  of  the  United  States.” 


5tK-  In  this  latter  regard  it  is  further  contended  by  the  United 
I States,  that  such  exceptions  only  should  be  made  from  the 
\ application  of  the  three-mile  rule  to  bays  as  are  sanctioned 
'\by  conventions  and  established  usage^  that  all  exceptions  for 
which  the  United  States  of  America  were  responsible  are  so 
sanctioned;  and  that  His  Majesty’s  Government  are  unable 
to  provide  evidence  to  show  that  the  bays  concerned  by  the 
treaty  of  1818  could  be  claimed  as  exceptions  on  these 
grounds  either  generally,  or  except  possibly  in  one  or  two 
cases,  specifically. 


But  the  tribunal  while  recognizing  that  conventions  and  estab- 
lished usage  might  be  considered  as  the  basis  for  claiming  as  terri- 
torial those  bays  which  on  this  ground  might  be  called  historic  bays, 
and  that  such  claims  should  be  held  valid  in  the  absence  of  any 
principle  of  international  law  on  the  subject;  nevertheless  is  i^nable 
to  apply  this,  a contrario,  so  as  to  subject  the  bays  in  question  to  the 
three-mile  rule,  as  desired  by  the  United  States:'^ 

{a)  Because  Great  Britain  has  during  this  controversy  asserted 
a claim  to  these  bays  generally,  and  has  enforced  such  claim  specif- 
ically in  statutes  or  otherwise,  in  regard  to  the  more  important  bays 
such  as  Chaleurs,  Conception  and  Miramichi ; 

(&)  Because  neither  should  such  relaxations  of  this  claim,  as  are 
in  evidence,  be  construed  as  renunciations  of  it;  nor  should  omis- 


186 


THE  HAGUE  COURT  REPORTS 


sions  to  enforce  the  claim  in  regard  to  bays  as  to  which  no  con- 
troversy arose,  be  so  construed.  Such  a construction  by  this  tri- 
bunal would  not  only  be  intrinsically  inequitable,  but  internationally 
injurious;  in  that  it  would  discourage  conciliatory  diplomatic  trans- 
actions and  encourage  the  assertion  of  extreme  claims  in  their 
fullest  extent; 

(c)  Because  any  such  relaxations  in  the  extreme  claim  of  Great 
Britain  in  its  international  relations  are  compen.sated  by  recogni- 
tions of  it  in  the  same  sphere  by  the  United  States ; notably  in  rela- 
tions with  Franrp  fnr  ir|,gtanrp  when  they  applied  to  Great 

Britain  for  the  protection  of  their  fishery  in  the  bays  on  the  western 
coast  of  Newfoundland,  whence  they  had  been  driven  by  French 
war  vessels  on  the  grqund  of  the  pretended  exclusive  right  of  the 
French.  Though  th^  “never  asserted  that  their  fishermen  had  been 
disturbed  within  the  three-mile  zone,  only  alleging  that  the  disturb- 
! ance  had  taken  place  in  the  bays,  they  claimed  to  be  protected  by 
f Great  Britain  for  having  been  molested  in  waters  which  were,  as 
i Mr.  Rush  stated,  “clearly  within  the  jurisdiction  and  sovereignty 
Vpf  Great  Britain.” 


✓^th.  It  has  been  contended  by  the  United  States  that  the  words 
/ “coasts,  bays,  creeks  or  harbors”  are  here  used  only  to  ex- 
press different  parts  of  the  coast  and  are  intended  to  express 
and  be  equivalent  to  the  word  “coast,”  whereby  the  three 
marine  miles  would  be  measured  from  the  sinuosities  of  the 
coast  and  the  renunciation  would  apply  only  to  the  waters 
\ of  bays  within  three  miles. 

'But  the  tribunal  is  unable  to  agree  with  this  contention : 

(o)  Because  it  is  a principle  of  interpretation  that  words  in  a 
document  ought  not  to  be  considered  as  being  without  any  mean- 
ing if  there  is  not  specific  evidence  to  that  purpose  and  the  inter- 
pretation referred  to  [would  lead  to  the  consequence,  practically,  of 
Reading  the  words  “bays,  coasts  and  harbors”  out  of  the  treaty; 
I so  that  it  would  read  “within  three  miles  of  any  of  the  coasts” 
I including  therein  the  coasts  of  the  bays  and  harbors; 

(b)  Because  the  word  “therein”  in  the  proviso — “restrictions 
necessary  to  prevent  their  taking,  drying  or  curing  fish  therein”  can 


THE  NORTH  ATLANTIC  COAST  FISHERIES  CASE 


187 


refer  only  to  “bays,”  and  not  to  the  belt  of  three  miles  along  the 
coast;  and  can  be  explained  only  on  the  supposition  that(the  words 
“bays,  creeks  and  harbors”  are  to  be  understood  in  their  usual  ordi- 
[nary  sense  and  not  in  an  artificially  restricted  sense  of  bays  within 
the  three-mile  belt; 

(c)  Because  the  practical  distinction  for  the  purpose  of  this 
fishery  between  coasts  and  bays  and  the  exceptional  conditions  per- 
taining to  the  latter  has  been  shown  from  the  correspondence  and 
the  documents  in  evidence,  especially  the  treaty  of  1783,  to  have 
been  in  all  probability  present  to  the  minds  of  the  negotiators  of 
the  treaty  of  1818; 

(d)  Because  the  existence  of  this  distinction  is  confirmed  in  the 
same  article  of  the  treaty  by  the  proviso  permitting  the  United 
States  fishermen  to  enter  bays  for  certain  purposes; 

(e)  Because  the  word  “coasts”  is  used  in  the  plural  form 
^ whereas  the  contention  would  require  its  use  in  the  singular ; 

• ' (/)  Because  the  tribunal  is  unable  to  understand  the  term 

“bays”  in  the  renunciatory  clause  in  other  than  its  geographical 
sense,  by  which  a bay  is  to  be  considered  as  an  indentation  of  the 
coast,  bearing  a configuration  of  a particular  character  easy  to  de- 
termine specifically,  but  difficult  to  describe  generally. 

The  negotiators  of  the  treaty  of  1818  did  probably  not  trouble  \ 
themselves  with  subtle  theories  concerning  the  notion  of  “bays”; 
they  most  probably  thought  that  everybody  would  know  what  was 
a bay.  In  this  popular  sense  the  term  must  be  interpreted  in  the 
treaty.  The  interpretation  must  take  into  account  all  the  indi- 
vidual circumstances  which  for  any  one  of  the  different  bays  are 
to  be  appreciated,  the  relation  of  its  width  to  the  length  of  penetra- 
tion inland,  the  possibility  and  the  necessity  of  its  being  defended 
by  the  State  in  whose  territory  it  is  indented;  the  special  value 
which  it  has  for  the  industry  of  the  inhabitants  of  its  shores;  the 
distance  which  it  is  secluded  from  the  highways  of  nations  on  the 
open  sea  and  other  circumstances  not  possible  to  enumerate  in 
general. 

For  these  reasons  the  tribunal  decides  and  awards: 

In  case  of  bays  the  three  marine  miles  are~to~Be~measured  from 
a straight  line  drawn  across  the  body  of  water  at  the  place  where 


188 


THE  HAGUE  COURT  REPORTS 


ceases  to  have  the  configuration  and  characteristics  of  a bay. 
At  all  other  places  the  three  marine  miles  are  to  be  measured  fol- 
lowing the  sinuosities  of  the  coast. 

But  considering  the  tribunal  can  not  overlook  that  this  answer  to 
Question  5,  although  correct  in  principle  and  the  only  one  possible 
in  view  of  the  want  of  a sufficient  basis  for  a more  concrete  answer, 
is  not  entirely  satisfactory  as  to  its  practical  applicability,  and  that 
it  leaves  room  for  doubts  and  differences  in  practice.  Therefore 
the  tribunal  considers  it  its  duty  to  render  the  decision  more  prac- 
ticable and  to  remove  the  danger  of  future  differences  by  adjoining 
to  it,  a recommendation  in  virtue  of  the  responsibilities  imposed  by 
Art.  4 of  the  special  agreement. 

Considering,  moreover,  that  in  treaties  with  France,  with  the 
North  German  Confederation  and  the  German  Empire  and  like- 
wise in  the  North  Sea  convention.  Great  Britain  has  adopted  for 
similar  cases  the  rule  that  only  bays  of  ten  miles  width  should  be 
considered  as  those  wherein  the  fishing  is  reserved  to  nationals.  And 
that  in  the  course  of  the  negotiations  between  Great  Britain  and 
the  United  States  a similar  rule  has  been  on  various  occasions  pro- 
posed and  adopted  by  Great  Britain  in  instructions  to  the  naval 
officers  stationed  on  these  coasts.  And  that  though  these  circum- 
stances are  not  sufficient  to  constitute  this  a principle  of  interna- 
tional law,  it  seems  reasonable  to  propose  this  rule  with  certain  ex- 
ceptions, all  the  more  that  this  rule  with  such  exceptions  has  already 
formed  the  basis  of  an  agreement  between  the  two  Powers. 

Now  therefore  this  tribunal  in  pursuance  of  the  provisions  of 
Art.  4 hereby  recommends  for  the  consideration  and  acceptance  of 
the  high  contracting  Parties  the  following  rules  and  method  of 
procedure  for  determining  the  limits  of  the  bays  hereinbefore 
enumerated. 

1 

In  every  bay  not  hereinafter  specifically  provided  for  the  limits 
of  exclusion  shall  be  drawn  three  miles  seaward  from  a straight  line 
across  the  bay  in  the  part  nearest  the  entrance  at  the  first  point 
where  the  width  does  not  exceed  ten  miles. 


THE  NORTH  ATLANTIC  COAST  FISHERIES  CASE 


189 


2 

In  the  following  bays  where  the  configuration  of  the  coast  ?ind  the 
local  climatic  conditions  are  such  that  foreign  fishermen  when  with- 
in the  geographic  headlands  might  reasonably  and  hona  fide  believe 
themselves  on  the  high  seas,  the  limits  of  exclusion  shall  be  drawn 
in  each  case  between  the  headlands  hereinafter  specified  as  being 
those  at  and  within  which  such  fishermen  might  be  reasonably  ex- 
pected to  recognize  the  bay  under  average  conditions. 

For  the  Baie  des  Chaleurs  the  line  from  the  light  at  Birch  Point 
on  Miscou  Island  to  Macquereau  Point  light ; for  the  Bay  of  Mira- 
michi,  the  line  from  the  light  at  Point  Escuminac  to  the  light  on 
the  eastern  point  of  Tabisintac  Gully;  for  Egmont  Bay,  in  Prince 
Edward  Island,  the  line  from  the  light  at  Cape  Egmont  to  the  light 
at  West  Point;  and  off  St.  Ann’s  Bay,  in  the  province  of  Nova 
Scotia,  the  line  from  the  light  at  Point  Anconi  to  the  nearest  point 
on  the  opposite  shore  of  the  mainland. 

For  Fortune  Bay,  in  Newfoundland,  the  line  from  Connaigre 
Head  to  the  light  on  the  southeasterly  end  of  Brunet  Island,  thence 
to  Fortune  Head. 

For  or  near  the  following  bays  the  limits  of  exclusion  shall  be 
three  marine  miles  seawards  from  the  following  lines,  namely : 

For  or  near  Barrington  Bay,  in  Nova  Scotia,  the  line  from  the 
light  on  Stoddart  Island  to  the  light  on  the  south  point  of  Cape 
Sable,  thence  to  the  light  at  Baccaro  Point;  at  Chedabucto  and  St. 
Peter’s  Bays,  the  line  from  Cranberry  Island  light  to  Green  Island 
light,  thence  to  Point  Rouge ; for  Mira  Bay,  the  line  from  the  light 
on  the  east  point  of  Scatari  Island  to  the  northeasterly  point  of  Cape 
Morien;  and  at  Placentia  Bay,  in  Newfoundland,  the  line  from 
Latine  Point,  on  the  eastern  mainland  shore,  to  the  most  southerly 
point  of  Red  Island,  thence  by  the  most  southerly  point  of  Mera- 
sheen  Island  to  the  mainland. 

Long  Island  and  Bryer  Island,  on  St.  Mary’s  Bay,  in  Nova  Scotia, 
shall,  for  the  purpose  of  delimitation,  be  taken  as  the  coasts  of  such 
bays. 

It  is  understood  that  nothing  in  these  rules  refers  either  to  the 
Bay  of  Fundy  considered  as  a whole  apart  from  its  bays  and  creeks 
or  as  to  the  innocent  passage  through  the  Gut  of  Canso,  which  were 


190 


THE  HAGUE  COURT  REPORTS 


excluded  by  the  agreement  made  by  exchange  of  notes  between  Mr. 
Bacon  and  Mr.  Bryce  dated  February  21st,  1909,  and  March  4th, 
1909;  or  to  Conception  Bay,  which  was  provided  for  by  the  decision 
of  the  Privy  Council  in  the  case  of  the  Direct  United  States  Cable 
Company  v.  The  Anglo  American  Telegraph  Company,  in  which 
decision  the  United  States  have  acquiesced. 


QUESTION  6 


V 


' Have  the  inhabitants  of  the  United  States  the  liberty  under  the 
said  article  or  otherwise,  to  take  fish  in  the  bays,  harbors,  and 
creeks  on  that  part  of  the  southern  coast  of  Newfoundland  which 
extends  from  Cape  Ray  to  Rameau  Islands,  or  on  the  western  and 
northern  coasts  of  Newfoundland  from  Cape  Ray  to  Quirpon  Is- 
lands, or  on  the  Magdalen  Islands? 


In  regard  to  this  question,  it  is  contended  by  the  United  States 
that  the  inhabitants  of  the  United  States  have  the  liberty 
under  Art.  1 of  the  treaty  of  taking  fish  in  the  bays,  harbors 
and  creeks  on  that  part  of  the  southern  coast  of  Newfound- 
land which  extends  from  Cape  Ray  to  Rameau  Islands  or 
on  the  western  and  northern  coasts  of  Newfoundland  from 
Cape  Ray  to  Quirpon  Islands  and  on  the  Magdalen  Islands. 
It  is  contended  by  Great  Britain  that  they  have  no  such 
liberty. 

Now  considering  that  the  evidence  seems  to  show  that  the  inten- 
tion of  the  parties  to  the  treaty  of  1818,  as  indicated  by  the  records 
of  the  negotiations  and  by  the  subsequent  attitude  of  the  Govern- 
y ments  was  to  admit  the  United  States  to  such  fishery,  this  tribunal 
/ is  of  opinion  that  it  is  incumbent  on  Great  Britain  to  produce  satis- 
' factory  proof  that  the  United  States  are  not  so  entitled  under  the 
treaty. 

For  this  purpose  Great  Britain  points  to  the  fact  that  whereas 
/ the  treaty  grants  to  American  fishermen  liberty  to  take  fish  “on  the 
coasts,  bays,  harbors,  and  creeks  from  Mount  Joly  on  the  southern 
coast  of  Labrador”  the  liberty  is  granted  to  the  “coast”  only  of 
Newfoundland  and  to  the  “shore”  only  of  the  Magdalen  Islands; 


THE  NORTH  ATLANTIC  COAST  FISHERIES  CASE 


191 


and  argues  that  evidence  can  be  found  in  the  correspondence  sub- 
iljitted  indicating  an  intention  to  exclude  Americans  from  New- 
j^oundland  bays  on  the  treaty  coast,  and  that  no  value  would  have 
/been  attached  at  that  time  by  the  United  States  Government  to  the 
liberty  of  fishing  in  such  bays  because  there  was  no  cod  fishery 
t;here  as  there  was  in  the  bays  of  Labrador. 

^But  the  tribunal  is  unable  to  agree  with  this  contention : 

^ (a)  Because  the  words  “part  of  the  southern  coast. . .from. . . . 
Jto”  and  the  words  “western  and  northern  coast. .. from. ..  .to,” 
I clearly  indicate  one  uninterrupted  coast-line;  and  there  is  no  reason 
to  read  into  the  words  “coasts”  a contradistinction  to  bays,  in  order 
lo  exclude  bays.  On  the  contrary,  as  already  held  in  the  answer  to 
Question  5,  the  words  “liberty,  forever,  to  dry  and  cure  fish  in  any 
of  the  unsettled  bays,  harbors  and  creeks  of  the  southern  part  of  the 
coast  of  Newfoundland  hereabove  described,”  indicate  that  in  the 
meaning  of  the  treaty,  as  in  all  the  preceding  treaties  relating  to 
the  same  territories,  the  words  coast,  coasts,  harbors,  bays,  etc.,  are 
used,  without  attaching  to  the  word  “coast”  the  specific  meaning  of 
excluding  bays.  Thus  in  the  provision  of  the  treaty  of  1783  giving 
liberty  “to  take  fish  on  such  part  of  the  coast  of  Newfoundland  as 
British  fishermen  shall  use;”  the  word  “coast”  necessarily  includes 
bays,  because  if  the  intention  had  been  to  prohibit  the  entering  of 
the  bays  for  fishing  the  following  words  “but  not  to  dry  or  cure 
the  same  on  that  island,”  would  have  no  meaning.  The  contention 
that  in  the  treaty  of  1783  the  word  “bays”  is  inserted  lest  otherwise 
Great  Britain  would  have  had  the  right  to  exclude  the  Americans 
to  the  three-mile  line,  is  inadmissible,  because  in  that  treaty  that  line 
is  not  mentioned; 

(b)  Because  the  correspondence  between  Mr.  Adams  and  Lord 
Bathurst  also  shows  that  during  the  negotiations  for  the  treaty  the 
United  States  demanded  the  former  rights  enjoyed  under  the  treaty 
of  1783,  and  that  Lord  Bathurst  in  the  letter  of  30th  October,  1815, 
made  no  objection  to  granting  those  “former  rights”  “placed  under 
some  modifications,”  which  latter  did  not  relate  to  the  right  of  fish- 
ing in  bays,  but  only  to  the  “preoccupation  of  British  harbors  and 
creeks  by  the  fishing  vessels  of  the  United  States  and  the  forcible 
exclusion  of  British  subjects  where  the  fishery  might  be  most  ad- 
vantageously conducted,”  and  “to  the  clandestine  introduction  of 


192 


THE  HAGUE  COURT  REPORTS 


prohibited  goods  into  the  British  colonies.”  It  may  be  therefore 
assumed  that  the  word  “coast”  is  used  in  both  treaties  in  the  same 
sense,  including  bays; 

/ (c)  Because  the  treaty  expressly  allows  the  liberty  to  dry  and 

cure  in  the  unsettled  bays,  etc,  of  the  southern  part  of  the  coast  of 
Newfoundland,  and  this  shows  that,  a fortiori,  the  taking  of  fish  in 
\4h0se  bays  is  also  allowed;  because  the  fishing  liberty  was  a lesser 
burden  than  the  grant  to  cure  and  dry,  and  the  restrictive  clauses 
never  refer  to  fishing  in  contradistinction  to  drying,  but  always  to 
drying  in  contradistinction  to  fishing.  Fishing  is  granted  without 
drying,  never  drying  without  fishing; 

(d)  Because  there  is  not  sufficient  evidence  to  show  that  the 
enumeration  of  the  component  parts  of  the  coast  of  Labrador  was 
made  in  order  to  discriminate  between  the  coast  of  Labrador  and 
the  coast  of  Newfoundland ; 

(e)  Because  the  statement  that  there  is  no  codfish  in  the  bays  of 
I Newfoundland  and  that  the  Americans  only  took  interest  in  the 

codfishery  is  not  proved ; and  evidence  to  the  contrary  is  to  be  found 
in  Mr.  John  Adams’  Journal  of  Peace  Negotiations  of  November 

^5. 

(/)  Because  the  treaty  grants  the  right  to  take  fish  of  every  kind, 
and  not  only  codfish; 

(g)  Because  the  evidence  shows  that,  in  1823,  the  Americans 
were  fishing  in  Newfoundland  bays  and  that  Great  Britain  when 
summoned  to  protect  them  against  expulsion  therefrom  by  the 
French  did  not  deny  their  right  to  enter  such  bays. 

Therefore  this  tribunal  is  of  opinion  that  American  inhabitants 
are  entitled  to  fish  in  the  bays,  creeks  and  harbors  of  the  treaty 
coasts  of  Newfoundland  and  the  Magdalen  Islands  and  it  is  so 
decided  and  awarded. 


QUESTION  7 

Are  the  inhabitants  of  the  United  States  whose  vessels  resort  to 
the  treaty  coasts  for  the  purpose  of  exercising  the  liberties  referred 
to  in  Article  1 of  the  treaty  of  1818  entitled  to  have  for  those 
vessels,  when  duly  authorized  by  the  United  States  in  that  behalf, 
the  commercial  privileges  on  the  treaty  coasts  accorded  by  agree- 
ment or  otherwise  to  United  States  trading  vessels  generally. 


THE  NORTH  ATLANTIC  COAST  FISHERIES  CASE 


193 


Now  assuming  that  commercial  privileges  on  the  treaty  coasts 
are  accorded  by  agreement  or  otherwise  to  United  States  trading 
vessels  generally,  without  any  exception,  the  inhabitants  of  the 
United  States,  whose  vessels  resort  to  the  same  coasts  for  the  pur- 
pose of  exercising  the  liberties  referred  to  in  Article  1 of  the  treaty 
of  1818,  are  entitled  to  have  for  those  vessels  when  duly  author- 
ized by  the  United  States  in  that  behalf,  the  above-mentioned  com- 
mercial privileges,  the  treaty  containing  nothing  to  the  contrary. 
But  they  can  not  at  the  same  time  and  during  the  same  voyage  ex- 
ercise their  treaty  rights  and  enjoy  their  commercial  privileges, 
because  treaty  rights  and  commercial  privileges  are  submitted  to 
different  rules,  regulations  and  restraints. 

^ For  these  reasons  this  tribunal  is  of  opinion  that  the  inhabitants 
Z'  of  the  United  States  are  so  entitled  in  so  far  as  concerns  this  treaty, 
there  being  nothing  in  its  provisions  to  disentitle  them  provided  the 
\ treaty  liberty  of  fishing  and  the  commercial  privileges  are  not  ex- 
\ ercised  concurrently  and  it  is  so  decided  and  awarded. 

Done  at  The  Hague,  in  the  Permanent  Court  of  Arbitration,  in 
triplicate  original,  September  7th,  1910. 

H.  Lammasch 

A.  F.  DE  Savornin  Lohman 
George  Gray 
C.  Fitzpatrick 
Luis  M.  Drago 

Signing  the  award,  I state  pursuant  to  Article  9,  clause  2,  of  the 
special  agreement  my  dissent  from  the  majority  of  the  tribunal  in 
lespect  to  the  considerations  and  enacting  part  of  the  award  as  to 
Question  5. 

Grounds  for  this  dissent  have  been  filed  at  the  International 
Bureau  of  the  Permanent  Court  of  Arbitration. 

Luis  M.  Drago 


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NORTH  ATI^NTIC  COAST  FISHERIES  ARBITRATION 


MAP  NO.  I 


f/nder  Arlie'f  / ofDv  'lYfaly  of  Or.toh'r  HO.ISIH. 
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I 


THE  NORTH  ATLANTIC  COAST  FISHERIES  CASE 


195 


DISSENTING  OPINION  OF  LUIS  M.  DRAGO 
ON  QUESTION  5^ 


Counsel  for  Great  Britain  have  very  clearly  stated  that  according 
to  their  contention  the  territoriality  of  the  bays  referred  to  in  the 
treaty  of  1818  is  immaterial  because  whether  they  are  or  are  not 
territorial,  the  United  States  should  be  excluded  from  fishing  in 
them  by  the  terms  of  the  renunciatory  clause,  which  simply  refers 
to  “bays,  creeks  or  harbors  of  His  Britannic  Majesty’s  dominions” 
without  any  other  qualification  or  description.  If  that  were  so,  the 
necessity  might  arise  of  discussing  whether  or  not  a nation  has  the 
right  to  exclude  another  by  contract  or  otherwise  from  any  portion 
or  portions  of  the  high  seas.  But  in  my  opinion  the  tribunal  need 
not  concern  itself  with  such  general  question,  the  wording  of  the 
treaty  being  clear  enough  to  decide  the  point  at  issue. 

Article  1 begins  with  the  statement  that  differences  have  arisen 
respecting  the  liberty  claimed  by  the  United  States  for  the  inhab- 
itants thereof  to  take,  dry  and  cure  fish  on  “certain  coasts,  bays, 
harbors  jmd  creeks  of  His  Britannic  Majesty’s  dominions  in  Amer- 
ica,” and  then  proceeds  to  locate  the  specific  portions  of  the  coast 
with  its  corresponding  indentations,  in  which  the  liberty  of  taking, 
drying  and  curing  fish  should  be  exercised.  The  renunciatory  clause, 
which  the  tribunal  is  called  upon  to  construe,  runs  thus : “And  the 
United  States  hereby  renounce,  forever,  any  liberty  heretofore  en- 
joyed or  claimed  by  the  inhabitants  thereof,  to  take,  dry  or  cure 
fish  on,  or  within  three  marine  miles  of  any  of  the  coasts,  bays, 
creeks  or  harbors  of  His  Britannic  Majesty’s  dominions  in  America 
not  included  within  the  above-mentioned  limits.”  This  language 
•does  not  lend  itself  to  different  constructions.  If  the  bays  in  which 
the  liberty  has  been  renounced  are  those  “of  His  Britannic  Majesty’s 
^ dominions  in  America,”  they  must  necessarily  be  territorial  bays, 

; because  in  so  far  as  they  are  not  so  considered  they  should  belong 
to  the  high  seas  and  consequently  form  no  part  of  His  Britannic 


’s  dominions,  which,  by  definition,  do  not  extend  to  the  high 
seas.  It  can  not  be  said,  as  has  been  suggested,  that  the  use  of  the 
word  “dominions,”  in  the  plural,  implies  a different  meaning  than 
would  be  conveyed  by  the  same  term  as  used  in  the  singular,  so  that 
in  the  present  case,  “the  British  dominions  in  America”  ought  to 
be  considered  as  a mere  geographical  expression,  without  reference 


^Official  report,  p.  147. 


196 


THE  HAGUE  COURT  REPORTS 


to  any  right  of  sovereignty  or  “dominion”  It  seems  to  me,  on  the 
contrary,  that  “dominions,”  or  “possessions,”  or  “estates,”  or  such 
other  equivalent  terms,  simply  designate  the  places  over  which  the 
“dominion”  or  property  rights  are  exercised,  fwhere  there  is  no 
possibility  of  appropriation  or  dominion,  as  on  the  high  seas,  we  can 
not  speak  of  dominions.*^  The  “dominions”  extend  exactly  to  the 
point  which  the  “dominion”  reaches;  they  are  simply  the  actual  or 
physical  thing  over  which  the  abstract  power  or  authority,  the  right, 
as  given  to  the  proprietor  or  the  ruler,  applies.  The  interpretation 
as  to  the  territoriality  of  the  bays  as  mentioned  in  the  renunciatory 
clause  of  the  treaty  app>ears  stronger  when  considering  that  the 
United  States  specifically  renounced  the  “liberty,”  not  the  “right” 
to  fish  or  to  cure  and  dry  fish.  “The  United  States  renounce,  for- 
ever, any  liberty  heretofore  enjoyed  or  claimed,  to  take,  cure  or 
dry  fish  on,  or  within  three  marine  miles  of  any  of  the  coasts,  bays, 
creeks  or  harbors  of  His  Britannic  Majesty’s  dominions  in  Amer- 
ica.” It  is  well  known  that  the  negotiators  of  the  treaty  of  1783 
gave  a very  different  meaning  to  the  terms  liberty  and  right,  as 
distinguished  from  each  other.  In  this  connection  Mr.  Adams’ 
Journal  may  be  recited.  To  this  Journal  the  British  counter-case 
refers  in  the  following  terms:  “From  an  entry  in  Mr.  Adams’ 

Journal  it  appears  that  he  drafted  an  article  by  which  he  distin- 
guished the  right  to  take  fish  (both  on  the  high  seas  and  on  the 
shores)  and  the  liberty  to  take  and  cure  fish  on  the  land.  But  on 
the  following  day  he  presented  to  the  British  negotiators  a draft 
in  which  he  distinguishes  between  the  ‘right’  to  take  fish  on  the 
high  seas,  and  the  ‘liberty’  to  take  fish  on  the  ‘coasts,’  and  to  dry 
and  cure  fish  on  the  land  . . . The  British  commissioner  called 
attention  to  the  distinction  thus  suggested  by  Mr.  Adams  and  pro- 
posed that  the  word  liberty  should  be  applied  to  the  privileges  both 
on  the  water  and  on  the  land.  Mr.  Adams  thereupon  rose  up  and 
made  a vehement  protest,  as  is  recorded  in  his  diary,  against  the 
siiggestion  that  the  United  States  enjoyed  the  fishing  on  the  banks 
of  Newfoundland  by  any  other  title  than  that  of  right.  . . . The 
application  of  the  word  liberty  to  the  coast  fishery  was  left  as  Mr. 
Adams  proix>sed.”  “The  incident,”  proceeds  the  British  case,  “is  of 
importance,  since  it  shows  that  the  difference  betw'een  the  two 
phrases  w’as  intentional.”  (British  counter-case,  page  17.)  And 
the  British  argument  emphasizes  again  the  difference.  “More  cogent 


THE  NORTH  ATLANTIC  COAST  FISHERIES  CASE 


197 


Still  is  the  distinction  between  the  words  right  and  liberty.  -^The  word 
( tight  is  applied  to  the  sea  fisheries,  and  the  word  liberty  to  the  shore 
The  history  of  the  negotiations  shows  that  this  distinc- 
advisedly  adopted.”  If  then  a liberty  is  a grant  and  not 
the  recognition  of  2l  right;  if,  as  the  British  case,  counter-case  and 
argument  recognize,  ((he  United  States  had  the  right  to  fish  in  the 
I open  sea  in  contradistinction  with  the  liberty  to  fish  near  the  shores 
vor  portions  of  the  shores^  and  if  what  has  been  renounced  in  the 
words  of  the  treaty  is  the  “liberty”  to  fish  on,  or  within  three  miles 
of  the  bays,  creeks  and  harbors  of  His  Britannic  Majesty’s  domin- 
ions, it  clearly  follows  that  such  liberty  and  the  corresponding  re- 
nunciation refers  only  to  such  portions  of  the  bays  which  were  under 
the  sovereignty  of  Great  Britain  and  not  to  such  other  portions,  if 
any,  as  form  part  of  the  high  seas. 

And  thus  it  appears  that  far  from  being  immaterial  the  terri- 
toriality of  bays  is  of  the  utmost  importance.  The  treaty  not  con- 
taining any  rule  or  indication  upon  the  subject,  the  tribunal  can 
not  help  a decision  as  to  this  point,  which  involves  the  second  branch 
of  the  British  contention  that  all  so-called  bays  are  not  only  geo- 
graphical but  wholly  territorial  as  well,  and  subject  to  the  jurisdic- 
tion of  Great  Britain.  The  situation  was  very  accurately  described 
on  almost  the  same  lines  as  above-stated  by  the  British  memoran- 
dum sent  in  1870  by  the  Earl  of  Kimberley  to  Governor  Sir  John 
Young:  “The  right  of  Great  Britain  to  exclude  American  fisher- 
men from  waters  within  three  miles  of  the  coasts  is  unambiguous, 
and,  it  is  believed,  uncontested.  But  there  appears  to  be  some  doubt 
what  are  the  waters  described  as  within  three  miles  of  bays,  creeks 
or  harbors,  '^hen  a bay  is  less  than  six  miles  broad  its  waters 
are  within  the  three-mile  limit,  and  therefore  clearly  within  the 
meaning  of  the  treaty;  but  when  it  is  more  than  that  breadth,  the 
question  arises  whether  it  is  a bay  of  Her  Britannic  Majesty’s 
dominions^  This  is  a question  which  has  to  be  considered  in  each 
particular  case  with  regard  to  international  law  and  usage.  When 
such  a bay  is  not  a bay  of  Her  Majesty’s  dominions,  the  American 
fishermen  shall  be  entitled  to  fish  in  it,  except  within  three  marine 
miles  of  the  ‘coast;’  when  it  is  a bay  of  Her  Majesty’s  dominions 
they  will  not  be  entitled  to  fish  within  three  miles  of  it,  that  is  to 
say  (it  is  presumed)  within  three  miles  of  a line  drawn  from  head- 
land to  headland.”  (American  Case  Appendix,  page  629.) 


198 


THE  HAGUE  COURT  REPORTS 


Now,  it  must  be  stated  in  the  first  place  that  there  does  not  seem 
to  exist  any  general  rule  of  international  law  which  may  be  con- 
sidered final,  even  in  what  refers  to  the  marginal  belt  of  territorial 
waters.  The  old  rule  of  the  cannon-shot,  crystallized  into  the  pres- 
ent three  marine  miles  measured  from  low-water  mark,  may  be 
n)odified  at  a later  period  inasmuch  as  certain  nations  claim  a wider 
jurisdiction  and  an  extension  has  already  been  recommended  by  the 
Institute  of  International  Law.  There  is  an  obvious  reason  for  that. 
The  marginal  strip  of  territorial  waters  based  originally  on  the 
cannon-shot,  was  founded  on  the  necessity  of  the  riparian  State  to 
protect  itself  from  outward  attack,  by  providing  something  in  the 
nature  of  an  insulating  zone,  which  very  reasonably  should  be  ex- 
tended with  the  accrued  possibility  of  offense  due  to  the  wider  range 
of  modem  ordnance.  In  what  refers  to  bays,  it  has  been  proposed 
as  a general  rule  (subject  to  certain  important  exceptions)  that  the 
marginal  belt  of  territorial  waters  should  follow  the  sinuosities  of 
the  coast  more  or  less  in  the  manner  held  by  the  United  States  in 
the  present  contention,  so  that  the  marginal  belt  being  of  three  miles, 
as  in  the  treaty  under  consideration,  only  such  bays  should  be  held  as 
territorial  as  have  an  entrance  not  wider  than  six  miles.  (See  Sir 
Thomas  Barclay’s  Report  to  Institute  of  International  Law,  1894, 
page  129,  in  which  he  also  strongly  recommends  these  limits.)  This 
is  the  doctrine  which  Westlake,  the  eminent  English  writer  on  inter- 
national law,  has  summed  up  in  very  few  words:  “As  to  bays,” 

he  says,  “if  the  entrance  to  one  of  them  is  not  more  than  twice  the 
width  of  the  littoral  sea  enjoyed  by  the  country  in  question — that 
is,  not  more  than  six  sea  miles  in  the  ordinary  case,  eight  in  that  of 
Norway,  and  so  forth, — there  is  no  access  from  the  open  sea  to  the 
bay  except  through  the  territorial  water  of  that  country,  and  the 
inner  part  of  the  bay  will  belong  to  that  country  no  matter  how 
widely  it  may  expand.  The  line  drawn  from  shore  to  shore  at 
the  part  where,  in  approaching  from  the  open  sea,  the  width  first  con- 
tracts to  that  mentioned,  will  take  the  place  of  the  line  of  low  water, 
and  the  littoral  sea  belonging  to  the  State  will  be  measured  out- 
wards from  that  line  to  the  distance  of  three  miles  or  more,  proper 
to  the  State”  (Westlake,  vol.  1,  page  187).  But  the  learned  author 
takes  care  to  add : ^‘But  although  this  is  the  general  rule  it  often 
meets  with  an  exception  in  the  case  of  bays  which  penetrate  deep 
into  the  land  and  are  called  gulfs.  Ji  Many  of  these  are  recognized 


THE  NORTH  ATLANTIC  COAST  FISHERIES  CASE 


199 


by  immemorial  usage  as  territorial  sea  of  the  States  into  which  they 
penetrate,  notwithstanding  that  their  entrance  is  wider  than  the 
general  rule  for  bays  would  give  as  a limit  for  such  appropriation.” 
And  he  proceds  to  quote  as  examples  of  this  kind  the  Bay  of  Con- 
ception in  Newfoundland,  which  he  considers  as  wholly  British, 
Chesapeake  and  Delaware  Bays,  which  belong  to  the  United  States, 
and  others.  {Ibid,  page  188.)  The  Institute  of  International  Law, 
in  its  annual  meeting  of  1894,  recommended  a marginal  belt  of  six 
m.iles  for  the  general  line  of  the  coast  and  as  a consequence  estab- 
lished that  for  bays  the  line  should  be  drawn  up  across  at  the  near- 
est portion  of  the  entrance  toward  the  sea  where  the  distance 
between  the  two  sides  do  not  exceed  twelve  miles.  But  the  learned 
association  very  wisely  added  a proviso  to  the  effect,  f ‘that  bays 
/ should  be  so  considered  and  measured  unless  a continuous  and  estab- 
{Hished  usage  has  sanctioned  a greater  breadth.^  Many  great  author- 
ities are  agreed  as  to  that.  Counsel  for  the  United  States  proclaimed 
the  right  to  the  exclusive  jurisdiction  of  certain  bays,  no  matter 
what  the  width  of  their  entrance  should  be,  when  the  littoral  nation 
has  asserted  its  right  to  take  it  into  their  jurisdiction  upon  reasons 
which  go  always  back  to  the  doctrine  of  protection.  Lord  Black- 
bum,  one  of  the  most  eminent  of  English  judges,  in  delivering  the 
opinion  of  the  Privy  Council  about  Conception  Bay  in  Newfound- 
land, adhered  to  the  same  doctrine  when  he  asserted  the  territoriality 
of  that  branch  of  the  sea,  giving  as  a reason  for  such  finding  “that 
the  British  Government  for  a long  period  had  exercised  dominion 
over  this  bay  and  its  claim  had  been  acquiesced  in  by  other  nations, 
so  as  to  show  that  the  bay  had  been  for  a long  time  occupied  ex- 
clusively by  Great  Britain,  a circumstance  which,  in  the  tribunals  of 
any  country,  would  be  very  important.”  “And  moreover,”  he 
added,  “the  British  Legislature  has,  by  Acts  of  Parliament,  declared 
it  to  be  part  of  the  British  territory,  and  part  of  the  country  made 
subject  to  the  legislation  of  Newfoundland.”  (Direct  U.  S.  Cable 
Co.  V.  The  Anglo-American  Telegraph  Co.,  Law  Reports,  2 Ap- 
peal Cases,  374.) 

So  it  may  be  safely  asserted  that  a certain  class  of  bays,  which 
might  be  properly  called  the  historical  bays  such  as  Chesapeake  Bay 
and  Delaware  Bay  in  North  America  and  the  great  estuary  of  the 
River  Plata  in  South  America,  form  a class  distinct  and  apart  and 
I undoubtedly^belong  to  the  littoral  country,  whatever  be  their  depth 


200 


THE  HAGUE  COURT  REPORTS 


/ of  p>enetration  and  the  width  of  their  mouths,  when  such  country 
has  asserted  its  sovereignty  over  them,  and  particular  circumstances 
such  as  geographical  configuration,  immemorial  usage  and  above  all, 
^''-ihe  requirements  of  self-defense,  justify  such  a pretension./  The 
right  of  Great  Britain  over  the  bays  of  Conception,  Chaleur  and 
Miramichi  are  of  this  description.  In  what  refers  to  the  other  bays, 
as  might  be  termed  the  common,  ordinary  bays,  indenting  the  coasts, 
ever  which  no  special  claim  or  assertion  of  sovereignty  has  been 
made,  there  does  not  seem  to  be  any  other  general  principle  to  be 
applied  than  the  one  resulting  from  the  custom  and  usage  of  each 
individual  nation  as  shown  by  their  treaties  and  their  general  and 
time  honored  practice. 

The  well-known  words  of  Bynkershoek  might  be  very  appropri- 
ately recalled  in  this  connection  when  so  many  and  divergent  opin- 
ions and  authorities  have  been  recited : “The  common  law  of 

nations,”  he  says,  “can  only  be  learnt  from  reason  and  custom.  I 
do  not  deny  that  authority  may  add  weight  to  reason,  but  I prefer 
to  seek  it  in  a constant  custom  of  concluding  treaties  in  one  sense 
or  another  and  in  examples  that  have  occurred  in  one  country  or 
another.”  (Questiones  Jure  Publici,  vol.  1,  Cap.  3.) 

It  is  to  lie  borne  in  mind  in  this  respect  that  the  tribunal  has  been 
called  upon  to  decide  as  the  subject-matter  of  this  controversy,  the 
construction  to  be  given  to  the  fishery  treaty  of  1818  between  Great 
Britain  and  the  United  States.  And  so  it  is  that  from  the  usage 
and  the  practice  of  Great  Britain  in  this  and  other  like  fisheries 
and  from  treaties  entered  into  by  them  with  other  nations  as  to 
fisheries,  may  be  evolved  the  right  interpretation  to  be  given  to  the 
particular  convention  which  has  been  submitted.  In  this  connection 
the  following  treaties  may  be  recited ; 

Treaty  between  Great  Britain  and  France.  2nd  August,  1839.  It 
reads  as  follows : 

Article  9.  The  subjects  of  Her  Britannic  Majesty  shall  enjoy 
the  exclusive  right  of  fishery  within  the  distance  of  3 miles  from  low 
water  mark  along  the  whole  extent  of  the  coasts  of  the  British 
I slands. 

It  is  agreed  that  the  distance  of  three  miles  fixed  as  the  general 
limit  for  the  exclusive  right  of  fishery  upon  the  coasts  of  the  two 


THE  NORTH  ATLANTIC  COAST  FISHERIES  CASE 


201 


A countries,  shall,  with  respect  to  bays,  the  mouths  of  which  do  not 
\ exceed  ten  miles  in  width,  be  measured  from  a straight  line  drawn 
\from  headland  to  headland. 

Article  10.  It  is  agreed  and  understood,  that  the  miles  mentioned 
in  the  present  convention  are  geographical  miles,  whereof  60  make 
a degree  of  latitude. 

(Hertslett’s  Treaties  and  Conventions,  vol.  v,  p.  89.) 

Regulations  between  Great  Britain  and  France.  24th  May,  1843. 

Art.  2.  The  limits,  within  which  the  general  right  of  fishery  is 
exclusively  reserved  to  the  subjects  of  the  two  kingdoms  respec- 
tively, are  fixed  (with  the  exception  of  those  in  Granville  Bay)  at  3 
miles  distance  from  low  water  mark. 

y With  respect  to  bays,  the  mouths  of  which  do  not  exceed  ten 
f miles  in  width,  the  3-mile  distance  is  measured  from  a straight  line 
y^drawn  from  headland  to  headland. 

Art.  3.  The  miles  mentioned  in  the  present  regulations  are  geo- 
graphical miles,  of  which  60  make  a degree  of  latitude. 

(Hertslett,  vol.  vi,  p.  416.) 

Treaty  between  Great  Britain  and  France.  November  11,  1867. 

Art.  1.  British  fishermen  shall  enjoy  the  exclusive  right  of  fishery 
within  the  distance  of  3 miles  from  low  water  mark,  along  the  whole 
extent  of  the  coasts  of  the  British  Islands. 

The  distance  of  3 miles  fixed  as  the  general  limit  for  the  ex- 
clusive right  of  fishery  upon  the  coasts  of  the  two  countries  shall, 
f with  respect  to  bays,  the  mouths  of  which  do  not  exceed  ten  miles 
I in  width  be  measured  from  a straight  line  drawn  from  headland 
\to  headland. 

The  miles  mentioned  in  the  present  convention  are  geographical 
miles  whereof  60  make  a degree  of  latitude. 

(Hertslett’s  Treaties,  vol.  xii,  p.  1126,  British  Case  App.,  p.  38.) 


Great  Britain  and  North  German  Confederation.  British  notice 
to  fishermen  by  the  Board  of  Trade.  Board  of  Trade,  November, 
1868. 

Her  Majesty’s  Government  and  the  North  German  Confederation 
having  come  to  an  agreement  respecting  the  regulations  to  be  ob- 


202 


THE  HAGUE  COURT  REPORTS 


served  by  British  fishermen  fishing  off  the  coasts  of  the  North  Ger- 
man Confederation,  the  following  notice  is  issued  for  the  guidance 
and  warning  of  British  fishermen ; 

1.  The  exclusive  fishery  limits  of  the  German  Empire  are  desig- 
nated by  the  Imperial  Government  as  follows:  that  tract  of  the  sea 
which  extends  to  a distance  of  3 sea  miles  from  the  extremest  limits 
which  the  ebb  leaves  dry  of  the  German  North  Sea  coast  of  the 
German  islands  or  flats  lying  before  it,  as  well  as^hose  bays  and 
incurvations  of  the  coast  which  are  ten  sea  miles  or  less  in  breadth 
reckoned  from  the  extremest  points  of  the  land  and  the  flats,  must 
be  considered  as  under  the  territorial  sovereignty  of  North  Ger- 
many) 

(Hertslett’s  Treaties,  vol.  xiv,  p.  1055.) 

Great  Britain  and  German  Empire.  British  Board  of  Trade, 
December,  1874. 

(Same  recital  referring  to  an  arrangement  entered  into  between 
Her  Britannic  Majesty  and  the  German  Government.) 

Then  the  same  articles  follow  with  the  alteration  of  the  words 
“German  Empire”  for  “North  Germany.” 

(Hertslett,  vol.  xiv,  p.  1058.) 

Treaty  between  Great  Britain,  Belgium,  Denmark,  France,  Ger- 
many and  the  Netherlands  for  regulating  the  police  of  the  North 
Sea  fisheries.  May  6,  1882. 

2.  Les  pecheurs  nationaux  jouiront  du  droit  exclusif  de  peche 
dans  le  rayon  de  3 milles,  a partir  de  la  laisse  de  basse  mer,  le  long 
de  toute  I’etendue  des  cotes  de  leurs  pays  respectifs,  ainsi  que  des 
lies  et  des  bancs  qui  en  dependent. 

Pour  les  baies  le  rayon  de  3 milles  sera  mesure  a partir  d’une 
ligne  droite,  tiree,  en  travers  de  la  baie,  dans  la  partie  la  plus 
rapprochee  de  I’entree,  au  premier  point  ou  I’ouverture  n’excedera 
pas  10  milles. 

(Hertslett,  vol.  xv,  p.  794.) 

British  Order  in  Council,  October  23rd,  1877. 

Prescribes  the  obligation  of  not  concealing  or  effacing  numbers 
or  marks  on  boats,  employed  in  fishing  or  dredging  for  purposes 


THE  NORTH  ATLANTIC  COAST  FISHERIES  CASE 


203 


of  sale  on  the  coasts  of  England,  Wales,  Scotland  and  the  Islands 
of  Guernsey,  Jersey,  Alderney,  Sark  and  Man,  and  not  going  out- 
side; 

(a)  The  distance  of  3 miles  from  low  water  mark  along  the 
whole  extent  of  the  said  coasts; 

^ (b)  In  cases  of  bays  less  than  10  miles  wide  the  line  joining  the 
^eadlands  of  said  bays. 

(Hertslett,  vol.  xiv,  p.  1032.) 

To  this  list  may  be  added  the  unratified  treaty  of  1888  between 
Great  Britain  and  the  United  States  which  is  so  familiar  to  the  tri- 
bunal. Such  unratified  treaty  contains  an  authoritative  interpretation 
of  the  Convention  of  October  20th,  1818,  sub-judice : “The  three 
marine  miles  mentioned  in  Article  1 of  the  Convention  of  October 
20th,  1818,  shall  be  measured  seaward  from  low-water  mark;  but  at 
every  bay,  creek  or  harbor,  not  otherwise  specifically  provided  for  in 
this  treaty,  such  three  marine  miles  shall  be  measured  seaward  from 
a straight  line  drawn  across  the  bay,  creek  or  harbor,  in  the  part 
nearest  the  entrance  at  the  first  point  where  the  width  does  not 
exceed  ten  marine  miles,”  which  is  recognizing  the  exceptional  bays 
as  aforesaid  and  laying  the  rule  for  the  general  and  common  bays. 

It  has  been  suggested  that  the  treaty  of  1818  ought  not  to  be 
studied  as  hereabove  in  the  light  of  any  treaties  of  a later  date,  but 
rather  be  referred  to  such  British  international  conventions  as  pre- 
ceded it  and  clearly  illustrate,  according  to  this  view,  what  were, 
at  the  time,  the  principles  maintained  by  Great  Britain  as  to  their 
sovereignty  over  the  sea  and  over  the  coast  and  the  adjacent  terri- 
torial waters.  In  this  connection  the  treaties  of  1686  and  1713 
with  France  and  of  1763  with  France  and  Spain  have  been  recited 
and  oflfered  as  examples  also  of  exclusion  of  nations  by  agreement 
from  fishery  rights  on  the  high  seas.  I cannot  partake  of  such  a 
view.  The  treaties  of  1686,  1713  and  1763  can  hardly  be  under- 
stood with  respect  to  this,  otherwise  than  as  examples  of  the  wild, 
obsolete  claims  over  the  common  ocean  which  all  nations  have  of 
old  abandoned  with  the  progress  of  an  enlightened  civilization.  And 
if  certain  nations  accepted  long  ago  to  be  excluded  by  convention 
from  fishing  on  what  is  to-day  considered  a common  sea,  it  is  pre- 
cisely because  it  was  then  understood  that  such  tracts  of  water,  now 


204 


THE  HAGUE  COURT  REPORTS 


free  and  open  to  all,  were  the  exclusive  property  of  a particular 
power,  wha  being  the  owners,  admitted  or  excluded  others  from 
• their  use.  (The  treaty  of  1818  is  in  the  meantime  one  of  the  few 
Kwhich  mark  an  era  in  the  diplomacy  of  the  world.  As  a matter  of 
fact  it  is  the  very  first  which  commuted  the  rule  of  the  cannon-shot 
into  the  three  marine  miles  of  coastal  jurisdiction.v^  And  it  really 
would  appear  unjustified  to  explain  such  historic  document,  by 
referring  it  to  international  agreements  of  a hundred  and  two  hun- 
dred years  before  when  the  doctrine  of  Selden’s  Mare  Clausum  was 
at  its  height  and  when  the  coastal  waters  were  fixed  at  such  dis- 
tances as  sixty  miles,  or  a hundred  miles,  or  two  days’  journey  from 
the  shore  and  the  like,  fit  seems  very  appropriate,  on  the  contrary, 
to  explain  the  meaning  of  the  treaty  of  1818  by  comparing  it  with 
\ those  which  immediately  followed  and  established  the  same  limit 
^x>f  coastal  jurisdiction"^  As  a general  rule  a treaty  of  a former  date 
may  be  very  safely  construed  by  referring  it  to  the  provisions  of 
like  treaties  made  by  the  same  nation  on  the  same  matter  at  a later 
time.  Much  more  so  when,  as  occurs  in  the  present  case,  the  later 
conventions,  with  no  exception,  starting  from  the  same  premise 
of  the  three  miles  coastal  jurisdiction  arrive  always  to  an  uniform 
policy  and  line  of  action  in  what  refers  to  bays.  / As  a matter  of 

(fact  all  authorities  approach  and  connect  the  modern  fishery  treaties 
of  Great  Britain  and  refer  them  to  the  treaty  of  1818.^  The  second 
edition  of  Kluber,  for  instance,  quotes  in  the  same  sentence  the 
treaties  of  October  20th,  1818,  and  August  2,  1839,  as  fixing  a dis- 
tance of  three  miles  from  low  water  mark  for  coastal  jurisdiction. 
And  Fiori,  the  well-known  Italian  jurist,  referring  to  the  same 
marine  miles  of  coastal  jurisdiction,  says:  “This  rule  recognized 

as  early  as  the  treaty  of  1818  between  the  United  States  and  Great 
Britain,  and  that  l>etwen  Great  Britain  and  France  in  1839,  has 
again  been  admitted  in  the  treaty  of  1867.”  {Nouveau  Droit  Inter- 
national Public,  Paris,  1885,  section  803.) 

This  is  only  a recognition  of  the  permanency  and  the  continuity 
of  States.  The  treaty  of  1818  is  not  a separate  fact  unconnected 
with  the  later  policy  of  Great  Britain.  Its  negotiators  were  not  par- 
ties to  such  international  convention  and  their  powers  disappeared 
as  soon  as  they  signed  the  document  on  behalf  of  their  countries. 
The  parties  to  the  treaty  of  1818  were  the  United  States  and  Great 


THE  NORTH  ATLANTIC  COAST  FISHERIES  CASE 


205 


Britain,  and  what  Great  Britain  meant  in  1818  about  bays  and 
fisheries,  when  they  for  the  first  time  fixed  a marginal  jurisdiction 
of  three  miles,  can  be  very  well  explained  by  what  Great  Britain,  the 
same  permanent  political  entity,  understood  in  1839,  1843,  1867, 
1874,  1878  and  1882,  when  fixing  the  very  same  zone  of  territorial 
waters.  /That  a bay  in  Europe  should  be  considered  as  different 
from  a bay  in  America  and  subject  to  other  principles  of  inter- 
national law  can  not  be  admitted  in  the  face  of  it.)  What  the  prac- 
tice of  Great  Britain  has  been  outside  the  treaties  is  very  well  known 
to  the  tribunal,  and  the  examples  might  be  multiplied  of  the  cases 
in  which  that  nation  has  ordered  its  subordinates  to  apply  to  the 
bays  on  these  fisheries  the  ten  mile  entrance  rule  or  the  six  miles 
according  to  the  occasion.  It  has  been  repeatedly  said  that  such 
have  been  only  relaxations  of  the  strict  right,  assented  to  by  Great 
Britain  in  order  to  avoid  friction  on  certain  special  occasions.  That 
may  be.  But  it  may  also  be  asserted  that  such  relaxations  have  been 
very  many  and  that  the  constant,  uniform,  never  contradicted,  prac- 
tice of  concluding  fishery  treaties  from  1839  down  to  the  present 
day,  in  all  of  which  the  ten  miles  entrance  bays  are  recognized,  is 
the  clear  sign  of  a policy.  This  policy  has  but  very  lately  found  a 
most  public,  solemn  and  unequivocal  expression.  “On  a question 
asked  in  Parliament  on  the  21st  of  February,  1907,”  says  Pitt 
Cobbett,  a distinguished  English  writer,  with  respect  to  the  Moray 
Firth  Case,  “it  was  stated  that,  according  to  the  view  of  the  For- 
eign Office,  the  Admiralty,  the  Colonial  Office,  the  Board  of  Trade 
and  the  Board  of  Agriculture  and  Fisheries,  the  term  ‘territorial 
waters’  was  deemed  to  include  waters  extending  from  the  coast 
line  of  any  part  of  the  territory  of  a State  to  three  miles  from  the 
low-water  mark  of  such  coast  line  and  the  waters  of  all  bays,  the 
entrance  to  which  is  not  more  than  six  miles,  and  of  which  the 
entire  land  boundary  forms  part  of  the  territory  of  the  same  state.” 
{Pitt  Cobbett  Cases  and  Opinions  on  International  Law,  vol.  1,  p. 
143.) 

Is  there  a contradiction  between  these  six  miles  and  the  ten  miles 
of  the  treaties  just  referred  to?  Not  at  all.  The  six  miles  are  the 
consequence  of  the  three  miles  marginal  belt  of  territorial  waters  in 
their  coincidence  from  both  sides  at  the  inlets  of  the  coast  and  the 
ten  miles  far  from  being  an  arbitrary  measure  are  simply  an  ex- 


206 


THE  HAGUE  COURT  REPORTS 


tension,  a margin  given  for  convenience  to  the  strict  six  miles  with 
fishery  purposes.  Where  the  miles  represent  sixty  to  a degree  in 
latitude  the  ten  miles  are  besides  the  sixth  part  of  the  same  degree. 
The  American  Government  in  reply  to  the  observations  made  to 
/Secretary  Bayard’s  memorandum  of  1888,  said  very  precisely: 
“The  width  of  ten  miles  was  proposed  not  only  because  it  had  been 
followed  in  conventions  between  many  other  Powers,  but  also  be- 
cause it  was  deemed  reasonable  and  just  in  the  present  cas^  this 
Government  recognizing  the  fact  that  while  it  might  have  claimed 
a width  of  six  miles  as  a basis  of  settlement,  fishing  within  bays 
and  harbors  only  slightly  wider  would  be  confined  to  areas  so  nar- 
row as  to  render  it  practically  valueless  and  almost  necessarily  ex- 
pose the  fishermen  to  constant  danger  of  carrying  their  operations 
into  forbidden  waters.”  (British  Case  Appendix,  page  416.)  And 
-professor  John  B^sett-MojQiie,  a recognized  authority  on  interna- 
tional law,  in  a communication  addressed  to  the  Institute  of  Interna- 
tional Law,  said  very  forcibly : “Since  you  observe  that  there  does 
not  appear  to  be  any  convincing  reason  to  prefer  the  ten  mile  line 
in  such  a case  to  that  of  double  three  miles,  I may  say  that  there 
have  been  supposed  to  exist  reasons  both  of  convenience  and  of 
safety.  The  ten-mile  line  has  been  adopted  in  the  cases  referred 
to  as  a practical  rule.  The  transgression  of  an  encroachment  upon 
territorial  waters  by  fishing  vessels  is  generally  a grave  offense,  in- 
volving in  many  instances  the  forfeiture  of  the  offending  vessel, 
and  it  is  obvious  that  the  narrower  the  space  in  which  it  is  permissi- 
ble to  fish  the  more  likely  the  offense  is  to  be  committed.  In  order, 
therefore,  that  fishing  may  be  practicable  and  safe  and  not  con- 
stantly attended  with  the  risk  of  violating  territorial  watersj^it  has 
been  thought  to  be  expedient  not  to  allow  it  where  the  extent  of  free 
waters  between  the  three  miles  drawn  on  each  side  of  the  bay  is  less 
* than  four  miles.  j'This  is  the  reason  of  the  ten-mile  line.  Its  inten- 
tion is  not  to  hamper  or  restrict  the  right  to  fish,  but  to  render  its 
exercise  practicable  and  safe.  When  fishermen  fall  in  with  a shoal 
of  fish,  the  impulse  to  follow  it  is  so  strong  as  to  make  the  possi- 
bilities of  transgression  very  serious  within  narrow  limits  of  free 
waters.  Hence  it  has  been  deemed  wiser  to  exclude  them  from  space 
less  than  four  miles  each  way  from  the  forbidden  lines.  In  spaces 
less  than  this  operations  are  not  only  hazardous,  but  so  circum- 


r 


THE  NORTH  ATLANTIC  COAST  FISHERIES  CASE 


207 


scribed  as  to  render  them  of  little  practical  value.”  (Annuaire  de 
I’Institut  de  Droit  International,  1894,  p.  146.) 

So  the  use  of  the  ten  mile  bays  so  constantly  put  into  practice 
by  Great  Britain  in  its  fishery  treaties  has  its  root  and  connection 
with  the  marginal  belt  of  three  miles  for  the  territorial  waters.  So 
much  so  that  the  tribunal  having  decided  not  to  adjudicate  in  this 
case  the  ten  miles  entrance  to  the  bays  of  the  treaty  of  1818,  this 
will  be  the  only  one  exception  in  which  the  ten  mules  of  the  bays 
do  not  follow  as  a consequence  the  strip  of  three  miles  of  territorial 
waters,  the  historical  bays  and  estuaries  always  excepted. 

And  it  is  for  that  reason  that^n  usage  so  firmly  and  for  so  long 
a time  established  ought,  in  my  opinion,  be  applied  to  the  construc- 
tion of  the  treaty  under  consideration^^uch  more  so,  when  custom, 
one  of  the  recognized  sources  of  law,  international  as  well  as  muni- 
cipal, is  supported  in  this  case  by  reason  and  by  the  acquiescence 
and  the  practice  of  many  nations. 

The  tribunal  has  decided  that:  “In  case  of  bays  the  3 miles  (of 
the  treaty)  are  to  be  measured  from  a straight  line  drawn  across 
the  body  of  water  at  the  place  where  it  ceases  to  have  the  configura- 
tion characteristic  of  a bay.  At  all  other  places  the  three  miles 
are  to  be  measured  following  the  sinuosities  of  the  coast.”  But^no 
rule  is  laid  out  or  general  principle  evolved  for  the  parties  to  know 
what  the  nature  of  such  configuration  is  or  by  what  methods  the 
points  should  be  ascertained  from  which  the  bay  should  lose  the 
characteristics  of  such.  There  lies  the  whole  contention  and  the 
whole  difficulty,  not  satisfactorily  solved,  to  my  mind,  by  simply 
recommending,  without  the  scope  of  the  award  and  as  a system  of 
procedure  for  resolving  future  contestations  under  Article  4 of  the 
treaty  of  arbitration,  a series  of  lines,  which  practical  as  they  may 
be  supposed  to  be,  can  not  be  adopted  by  the  parties  without  con- 
cluding a new  treaty. 

These  are  the  reasons  for  my  dissent,  which  I much  regret,  on 
Question  5. 

Done  at  The  Hague,  September  7th,  1910 


Luis  M.  Drago 


208 


THE  HAGUE  COURT  REPORTS 


ADDITIONAL  DOCUMENTS 

Modus  vivendi  between  the  United  States  and  Great  Britain  in  regard 
to  inshore  fisheries  on  the  treaty  coast  of  Newfoundland — Agree- 
ment effected  by  exchange  of  notes  at  London,  October  6/8,  igo6  '*■ 

American  Embassy, 
London,  October  6,  igo6. 

Sir:  I am  authorized  by  my  Government  to  ratify  a modus  vivendi 
in  regard  to  the  Newfoundland  fishery  question  on  the  basis  of  the 
Foreign  Office  memorandum,  dated  the  25th  of  September,  1906,  in 
which  you  accept  the  arrangement  set  out  in  my  memorandum  of  the 
12th  of  September  and  consent  accordingly  to  the  use  of  purse  seines 
by  American  fishermen  during  the  ensuing  season,  subject,  of  course, 
to  due  regard  being  paid  in  the  use  of  such  implements  to  other  modes 
of  fishery,  which,  as  you  state,  is  only  intended  to  secure  that  there 
shall  be  the  same  spirit  of  give  and  take  and  of  respect  for  common 
rights  between  the  users  of  purse  seines  and  the  users  of  stationary 
nets  as  would  be  expected  to  exist  if  both  sets  of  fishermen  employed 
the  same  gear. 

My  Government  understand  by  this  that  the  use  of  purse  seines  by 
American  fishermen  is  not  to  be  interfered  with,  and  that^the  shipment 
,of  Newfoundlanders  by  American  fishermen  outside  the  3-mile  limit 
^is  not  to  be  made  the  basis  of  interference  or  to  be  penalized^  at  the 
same  time  they  are  glad  to  assure  His  Majesty’s  Government,  should 
such  shipments  be  found  necessary,  that  they  will  be  made  far  enough 
from  the  exact  3-mile  limit  to  avoid  any  reasonable  doubt. 

On  the  other  hand,  it  is  also  understood  that  our  fishermen  are  to 
be  advised  by  my  Government,  and  to  agree,  not  to  fish  on  Eundav. 

It  is  further  understood  that  His  Majesty’s  Government  will  not 
bring  into  force  the  Newfoundland  foreign  fishing  vessels  Act  of 
1906  which  imposes  on  American  fishing  vessels  certain  restrictions  in 
addition  to  those  imposed  by  the  Act  of  1905,  and  also  that  the  pro- 
visions of  the  first  part  of  section  1 of  the  Act  of  1905,  as  to  boarding 
and  bringing  into  port,  and  also  the  whole  of  section  3 of  the  same 
Act,  will  not  be  regarded  as  applying  to  American  fishing  vessels. 

It  also  being  understood  that  our  fishermen  will  gladly  pay  light 
dues  if  they  are  not  deprived  of  their  rights  to  fish,  and  that  our 
fishermen  are  not  unwilling  to  comply  with  the  provisions  of  the 


'^Foreign  Relations  of  the  United  States,  1906,  pt.  1,  p.  701. 


THE  NORTH  ATLANTIC  COAST  FISHERIES  CASE 


209 


colonial  customs  law  as  to  reporting  at  a custom-house  when  physically 
possible  to  do  so. 

I need  not  add  that  my  Government  are  most  anxious  that  the  pro- 
visions of  the  modus  vivendi  should  be  made  effective  at  the  earliest 
possible  moment.  I am  glad  to  be  assured  by  you  that  this  note  will 
be  considered  as  sufficient  ratification  of  the  modus  vivendi  on  the 
part  of  my  Government. 

I have  the  honor  to  be,  with  the  highest  consideration,  sir, 

Your  most  obedient,  humble  servant, 

Whitelaw  Reid 

The  Right  Honorable  Sir  Edward  Grey,  Bt., 

Etc.,  etc.,  etc. 


Foreign  Office,  October  8,  ipo6. 

Your  Excellency:  I have  received  with  satisfaction  the  note  of 
the  6th  instant  in  which  your  Excellency  states  that  you  have  been 
authorized  by  your  Government  to  ratify  a modus  vivendi  in  regard  to 
the  Newfoundland  fishery  question  on  the  basis  of  the  memorandum 
which  I had  the  honor  to  communicate  to  you  on  the  25th  ultimo,  and 
^ I am  glad  to  assure  your  Excellency  that  the  note  in  question  will  be 
i considered  by  His  Majesty’s  Government  as  a sufficient  ratification 
\pf  that  arrangement  on  the  part  of  the  United  States  Government. 

His  Majesty’s  Government  fully  share  the  desire  of  your  Govem- 
meat  that  the  provisions  of  the  modus  vivendi  should  be  made  effective 
at  the  earliest  moment  possible,  and  the  necessary  instructions  for  its 
observance  were  accordingly  sent  to  the  Government  of  Newfound- 
land immediately  on  receipt  of  your  Excellency’s  communication. 

I have  the  honor  to  be,  with  the  highest  consideration,  your  Excel- 
lency’s most  obedient,  humble  servant, 

(In  the  absence  of  the  Secretary  of  State) 

E.  Gorst 

His  Excellency  the  Honorable  Whitelaw  Reid, 

Etc.,  etc.,  etc. 


Memorandum  of  the  American  Embassy  of  September  I2,  igo6^ 

My  Government  hears  with  the  greatest  concern  and  regret  that  in 
the  opinion  of  His  Majesty’s  Government  there  is  so  wide  a diver- 
gence of  views  with  regard  to  the  Newfoundland  fisheries  that  an 
immediate  settlement  is  hopeless. 

But  it  is  much  gratified  with  His  Majesty’s  Government’s  desire 


^Foreign  Relations  of  the  United  States,  1906,  pt.  1,  p.  702. 


210 


THE  HAGUE  COURT  REPORTS 


to  reach  a modus  vivendi  for  this  season,  and  appreciates  the  readi- 
ness to  waive  the  foreign  fishing  vessels  Act  of  1906.  This  and  other 
restrictive  legislation  had  compelled  our  fishermen  to  use  purse  seines 
or  abandon  their  treaty  rights. 

My  Government  sees  in  the  offer  not  to  apply  section  3,  Act  of  1905, 
and  that  part  of  section  1 relating  to  boarding  fishing  vessels  and 
bringing  them  into  port  fresh  proof  of  a cordial  disposition  not  to 
press  unduly  this  kind  of  regulation. 

Our  fishermen  will  also  gladly  pay  light  dues,  if  not  hindered  in 
their  right  to  fish.  They  are  not  unwilling,  either,  to  comply  with  the 
regulation  to  report  at  custom-houses,  when  possible.  It  is  sometimes 
physically  impossible,  however,  to  break  through  the  ice  for  that 
purpose. 

Most  unfortunately  the  remaining  proposals,  those  as  to  purse 
seining  and  Sunday  fishing,  present  very  grave  difficulties. 

We  appreciate  perfectly  the  desire  of  His  Majesty’s  Government  to 
prevent  Sunday  fishing.  But  if  both  this  and  purse  seine  fishing  are 
taken  away,  as  things  stand  there  might  be  no  opportunity  for  profit- 
able fishing  left  under  our  treaty  rights.  We  are  convinced  that  purse 
seines  are  no  more  injurious  to  the  common  fishery  than  the  gill  nets 
commonly  used — are  not,  in  fact,  so  destructive  and  do  not  tend  to 
change  the  migratory  course  of  the  herring  as  gill  nets  do,  through  the 
death  of  a large  percentage  of  the  catch  and  consequent  pollution  of 
the  water. 

The  small  amount  of  purse  seining  this  season  could  not,  of  course, 
materially  affect  the  common  fishery  anyway.  Besides  many  of  our 
fishermen  have  already  sailed,  with  purse  seines  as  usual,  and  the 
others  are  already  provided  with  them.  This  use  of  the  purse  seine 
was  not  the  free  choice  of  our  fishermen.  They  have  been  driven  to 
it  by  local  regulations,  and  the  continued  use  of  it  at  this  late  date  this 
year  seems  vital. 

But  we  will  renounce  Sunday  fishing  for  this  season  if  His  Maj- 
esty’s Government  will  consent  to  the  use  of  purse  seines,  and  we  can 
not  too  strongly  urge  an  acceptance  of  this  solution. 

American  Embassy,  London,  September  I2,  ipo6. 


Memorandum  of  the  British  Foreign  Office  of  September  25,  igo6^ 

His  Majesty’s  Government  have  considered,  after  consultation  with 
the  Government  of  Newfoundland,  the  proposals  put  forward  in  the 


^Foreign  Relations  of  the  United  States,  1906,  pt.  1,  p.  703. 


THE  NORTH  ATLANTIC  COAST  FISHERIES  CASE 


211 


memorandum  communicated  by  the  United  States  Ambassador  on  the 
12th  instant,  respecting  the  suggested  modus  vivendi  in  regard  to  the 
Newfoundland  fishery  question. 

They  are  glad  to  be  able  to  state  that  they  accept  the  arrangement 
set  out  in  the  above  memorandum  and  consent  accordingly  to  the  use 
of  purse  seines  by  United  States  fishermen  during  the  ensuing  season, 
subject,  of  course,  to  due  regard  being  paid,  in  the  use  of  such  imple- 
ments, to  other  modes  of  fishery. 

His  Majesty’s  Government  trust  that  the  United  States  Government 
will  raise  no  objection  to  such  a stipulation,  which  is  only  intended  to 
secure  that  there  shall  be  the  same  spirit  of  give  and  take  and  of 
respect  of  common  rights  between  the  users  of  purse  seines  and  the 
users  of  stationary  nets  as  would  be  expected  to  exist  if  both  sets  of 
fishermen  employed  the  same  gear. 

They  further  hope  that,  in  view  of  this  temporary  authorization 
of  the  purse  seines,  the  United  States  Government  will  see  their  way 
to  arranging  that  the  practice  of  engaging  Newfoundland  fishermen 
just  outside  the  three-mile  limit,  which,  to  some  extent,  prevailed  last 
year,  should  not  be  resorted  to  this  year. 

An  arrangement  to  this  effect  would  save  both  His  Majesty’s  Gov- 
ernment and  the  Newfoundland  Government  from  embarrassment 
which,  it  is  conceived,  having  regard  to  the  circumstances  in  which  the 
modus  vivendi  is  being  settled,  the  United  States  Government  would 
not  willingly  impose  upon  them.  Moreover,  it  is  not  in  itself  unrea- 
sonable, seeing  that  the  unwillingness  of  the  United  States  Govern- 
ment to  forego  the  use  of  purse  seines  appears  to  be  largely  based  upon 
the  inability  of  their  fishermen  to  engage  local  men  to  work  the  form 
of  net  recognized  by  the  colonial  fishery  regulations. 

The  United  States  Government  assured  His  Majesty’s  late  Govern- 
ment in  November  last  that  they  would  not  countenance  a specified 
evasion  of  the  Newfoundland  foreign  fishing  vessels  Act,  1905,  and 
the  proposed  arrangement  would  appear  to  be  in  accordance  with  the 
spirit  which  prompted  that  assurance. 

Foreign  Office,  September  25,  ipo6. 


212 


THE  HAGUE  COURT  REPORTS 


Modus  vivendi  between  the  United  States  and  Great  Britain  in  re- 
gard to  inshore  fisheries  on  the  treaty  coast  of  Newfoundland — 
Agreement  effected  by  exchange  of  notes  at  London,  September 
4/6,  1907^ 

American  Embassy, 
London,  September  4,  1907. 

Sir:  I am  authorized  by  my  Government  to  ratify  a modus  videndi 
in  regard  to  the  Newfoundland  fishery  question,  as  follows: 

It  is  agreed  that  the  fisheries  shall  be  carried  on  during  the  present 
year  substantially  as  they  were  actually  carried  on  for  the  most  of 
the  time  by  mutual  agreement,  under  the  modus  vivendi  of  1906. 

(1)  It  it  understood  that  His  Majesty’s  Government  will  not  bring 
into  force  the  Newfoundland  foreign  fishing  vessels  Act  of  1906, 
which  imposes  on  American  fishing  vessels  certaiii  restrictions  in 
addition  to  those  imposed  by  the  Act  of  1905,  and  also  that  the  pro- 
visions of  the  first  part  of  section  1 of  the  Act  of  1905,  as  to  board- 
ing and  bringing  into  port,  and  also  the  whole  of  section  three  of  the 
same  Act,  will  not  be  regarded  as  applying  to  American  fishing  vessels. 

(2)  In  consideration  of  the  fact  that  the  shipment  of  Newfound- 
landers by  American  fishermen  outside  the  three-mile  limit  is  not  to 
be  made  the  basis  of  interference  or  to  be  penalized,  my  Government 

(v/aives  the  use  of  purse  seines  by  American  fishermen  during  the  term 
governed  by  this  agreement,  and  also  waives  the  right  to  fish  on 
Sundays. 

(3)  It  is  understood  that  American  fishing  vessels  will  make  their 
shipment  of  Newfoundlanders,  as  fishermen,  sufficiently  far  from  the 
exact  three-mile  limit  to  avoid  reasonable  doubt. 

(4)  It  is  further  understood  that  American  fishermen  will  pay  light 
dues  when  not  deprived  of  their  rights  to  fish,  and  will  comply  with 
} the  provisions  of  the  colonial  customs  law  as  to  reporting  at  a cus- 
tom-house when  physically  possible  to  do  so. 

I need  not  add  that  my  Government  is  most  anxious  that  the  pro- 
visions of  this  modus  vivendi  should  be  made  effective  at  the  earliest 
possible  moment,  and  that,  in  view  of  this,  and  of  the  actual  presence 
of  our  fishing  fleet  on  the  treaty  shore,  we  do  not  feel  that  an  exchange 
of  ratifications  should  be  longer  delayed.  But  my  Government  has 
every  desire  to  make  the  arrangement,  pending  arbitration,  as  agree- 
able as  possible  to  the  Newfoundland  authorities,  consistent  with  the 
due  safeguarding  of  treaty  rights  which  we  have  enjoyed  for  nearly 


^Foreign  Relations  of  the  United  States,  1907,  pt.  1,  p.  531. 


THE  NORTH  ATLANTIC  COAST  FISHERIES  CASE 


213 


a century.  If,  therefore,  the  proposals  you  have  recently  shown  me 
from  the  Premier  of  Newfoundland  or  any  other  changes  in  the 
above  modus  vivendi  should  be  proposed  by  mutual  agreement  be- 
tween the  Newfoundland  authorities  and  our  fishermen,  having  due 
regard  to  the  losses  that  might  be  incurred  by  a change  of  plans  so 
long  after  preparations  for  the  season’s  fishing  had  been  made  and  the 
voyage  begun,  my  Government  will  be  ready  to  consider  such  changes 
with  you  in  the  most  friendly  spirit,  and  if  found  not  to  compromise 
our  rights,  to  unite  with  you  in  ratifying  them  at  once. 

I am  glad  to  be  assured  by  you  that  this  note  will  be  considered  as 
sufficient  ratification  of  the  modus  vivendi  on  the  part  of  my  Govern- 
ment. 

I have  the  honor  to  be,  with  the  highest  consideration,  sir,  your  most 
obedient  humble  servant, 

Whitelaw  Reid 

The  Right  Honorable  Sir  Edward  Grey,  Baronet,  etc.,  etc.,  etc. 

Foreign  Office,  September  6,  1907. 

Your  Excellency  : I have  the  honor  to  acknowledge  the  receipt 
of  your  Excellency’s  note  of  the  4th  instant,  containing  the  terms  of 
the  modus  vivendi  with  regard  to  the  Newfoundland  fisheries — which 
you  are  authorized  by  your  Government  to  ratify. 
f I am  glad  to  assure  your  Excellency  that  His  Majesty’s  Govern- 
’ ment  agrees  to  the  terms  of  the  modus  vivendi  and  that  your  Excel- 
lency’s note  will  be  considered  by  His  Majesty’s  Government  as  a 
sufficient  ratification  of  that  arrangement  on  the  part  of  His  Majesty’s 
Government. 

His  Majesty’s  Government  fully  shares  the  desire  of  your  Govern- 
ment that  the  provisions  of  the  modus  vivendi  should  be  made  effective 
at  the  earliest  possible  moment,  and  the  necessary  steps  will  be  taken 
by  His  Majesty’s  Government  to  secure  its  observance. 

His  Majesty’s  Government  takes  note  of  the  conciliatory  offer  of 
the  United  States  Government  to  consider  in  a most  friendly  spirit 
any  changes  in  the  modus  vivendi  which  may  be  agreed  upon  locally 
between  the  Newfoundland  authorities  and  the  United  States  fisher- 
men and  which  may  be  acceptable  both  to  the  United  States  Govern- 
ment and  to  His  Majesty’s  Government. 

I have  the  honor  to  be,  with  the  highest  consideration,  your  Excel- 
lency’s most  obedient  humble  servant, 

E.  Grey 

His  Excellency  the  Honorable  Whitelaw  Reid,  etc.,  etc.,  etc. 


214 


THE  HAGUE  COURT  REPORTS 


Modus  vivendi  between  the  United  States  and  Great  Britain  in  re- 
gard to  inshore  fisheries  on  the  treaty  coast  of  Newfoundland — 

Agi'eement  effected  by  exchange  of  notes  signed  at  London,  July 

Foreign  Office,  July  15,  igo8. 

Your  Excellency;  On  the  18th  ultimo  your  Excellency  proposed 
on  behalf  of  the  United  States  Government  that,  as  arbitration  in  re- 
gard to  the  Newfoundland  fisheries  question  could  not  be  arranged 
before  the  forthcoming  fishery  season,  the  modus  vivendi  of  last 
year  should  be  renewed  with  the  same  elasticity  as  before  for  the  par- 
ties concerned  to  make  local  arrangements  satisfactory  to  both  sides. 

I have  the  honor  to  inform  your  Excellency  that  the  Newfoundland 
Government,  having  been  consulted  on  the  subject,  have  expressed  the 
desire  that  the  herring  fishery  during  the  ensuing  season  should  be 
conducted  on  the  same  principles  as  in  the  season  of  1907,  and  for- 
mally undertake  to  permit  during  this  year  the  conduct  of  the  herring 
fishery  as  last  year. 

' As  the  arrangements  for  last  year  were  admittedly  satisfactory  to 
all  concerned  in  the  fishing.  His  Majesty’s  Government  hope  that  the 
I United  States  Government  will  see  their  way  to  accept  this  formal 
assurance  on  the  part  of  the  Newfoundland  Government  as  a satis- 
'■  factory  arrangement  for  the  season  of  1908.  If  this  course  be  adopted 
it  would  seem  unnecessary  to  enter  into  any  further  formal  arrange- 
ments, seeing  that  the  communication  of  this  assurance  to  the  United 
States  Government  and  its  acceptance  by  them  would  be  tantamount 
to  a modus  vivendi. 

I have  the  honor  to  be,  with  the  highest  consideration,  your  Excel- 
lency’s most  obedient,  humble  servant, 

Louis  Mallet 

(For  Sir  Edward  Grey) 

His  Excellency  the  Honorable  Whitelaw  Reid,  etc.,  etc.,  etc. 

American  Embassy, 
London,  July  2^,  igo8. 

Sir:  The  reply,  in  your  letter  of  July  15,  1908,  to  my  proposal  of 
June  18th,  for  a renewal  of  last  year’s  modus  vivendi  for  the  ap- 
proaching Newfoundland  fisheries  season,  with  the  same  elasticity  as 
before  for  local  arrangements,  has  been  duly  considered. 

I am  gratified  to  learn  that  the  Newfoundland  Government  was  so 
well  satisfied  with  the  result  of  these  arrangements  under  the  modus 


^Foreign  Relations  of  the  United  States,  1908,  p.  378. 


THE  NORTH  ATLANTIC  COAST  FISHERIES  CASE  215 

vivendi  for  last  year  that  it  offers  a formal  undertaking  that  the 
American  fishermen  shall  be  permitted  to  conduct  the  herring  fisheries 
this  year  in  the  same  way. 

It  is  proper  to  observe  that  our  fishermen  would  have  preferred 
last  year,  and  would  prefer  now  to  work  the  fisheries  with  purse 
seines,  as  heretofore,  as  provided  in  the  modus  vivendi  of  1906.  But 
they  yielded  last  year  to  the  strong  wishes  of  the  Newfoundland  Gov- 
ernment in  this  matter,  and  joined  in  the  arrangement  under  the  elastic 
clause  at  the  close  of  the  modus  vivendi  of  1907  by  which,  with  the 
approval  of  the  British  and  American  Governments,  they  gave  up  also 
other  claims  in  return  for  certain  concessions.  I must  reserve  their 
right  to  these  and  to  purse  seines,  as  heretofore  enjoyed,  as  not  now 
abandoned,  and  therefore  to  be  duly  considered  in  the  pending  arbitra- 
tion before  the  Hague  tribunal. 

f'''  But  with  this  reservation,  and  with  the  approval  of  my  Government, 
‘ I now  have  pleasure  in  accepting  the  offer  that  the  herring  fishery 
; during  the  ensuing  season  shall  be  conducted  on  the  same  principles 
i as  in  the  season  of  1907,  and  the  formal  undertaking  against  interfer- 
\ ence  with  this  by  the  Newfoundland  Government,  as  a substantial 
agreement  on  my  proposal  of  June  18th. 

We  unite  also  with  you  in  regarding  this  exchange  of  letters  as  con- 
stituting in  itself  a satisfactory  agreement  for  the  season  of  1908, 
without  the  necessity  for  any  further  formal  correspondence. 

I am  glad  to  add  that  Mr.  Alexander,  of  the  United  States  Fish 
Commission,  will  be  sent  again  this  year  to  the  treaty  shore,  and  that 
my  Government  feels  sure  that,  through  his  influence,  there  will  be 
general  willingness  to  carry  out  the  spirit  of  the  understanding,  and 
work  on  the  lines  of  least  resistance. 

I have  the  honor  to  be,  with  the  highest  consideration,  sir,  your  most 
obedient,  humble  servant, 

Whitelaw  Reid 

The  Right  Honorable  Sir  Edward  Grey,  Bart.,  etc.,  etc.,  etc. 


Correspondence  of  January  2^-March  4,  iQop,  Supplementary  to  the 
Agreement  for  Arbitration  ^ 

Department  of  State, 
Washington,  January  2y,  igog. 

Excellency:  In  order  to  place  officially  on  record  the  understand- 
ing already  arrived  at  by  us  in  preparing  the  special  agreement  which 


^Malloy,  Treaties,  Conventions,  etc.,  between  the  United  States  and  Other 
Powers,  vol.  1,  p.  841.  For  the  agreement  for  arbitration,  see  ante,  p.  147. 


216 


THE  HAGUE  COURT  REPORTS 


we  have  signed  to-day  for  the  submission  of  questions  relating  to  fish- 
eries on  the  north  Atlantic  coast  under  the  general  treaty  of  arbitra- 
tion concluded  between  the  United  States  and  Great  Britain  on  the 
fourth  day  of  April,  1908,  I have  the  honor  to  declare  on  behalf  of 
the  Government  of  the  United  States  that  Question  5 of  the  series 
submitted,  namely,  “From  where  must  be  measured  the  ‘three  marine 
miles  of  any  of  the  coasts,  bays,  creeks,  or  harbors’  referred  to  in  the 
said  article”  is  submitted  in  its  present  form  with  the  agreed  under- 
standing that  no  question  as  to  the  Bay  of  Fundy,  considered  as  a 
whole  apart  from  its  bays  or  creeks,  or  as  to  innocent  passage  through 
the  Gut  of  Canso  is  included  in  this  question  as  one  to  be  raised  in  the 
present  arbitration ; it  being  the  intention  of  the  parties  that  their 
respective  views  or  contentions  on  either  subject  shall  be  in  no  wise 
prejudiced  by  anything  in  the  present  arbitration. 

I have  the  honor  to  be,  with  the  highest  respect,  your  Excellency’s 
most  obedient  servant, 

Elihu  Root 

His  Excellency  The  Right  Honorable 
James  Bryce,  O.M., 

Ambassador  of  Great  Britain. 

British  Embassy, 
Washington,  January  27,  igog. 

Sir:  I have  the  honor  to  acknowledge  your  note  of  to-day’s  date 
and  in  reply  have  to  declare  on  behalf  of  His  Majesty’s  Government, 
in  order  to  place  officially  on  record  the  understanding  already  arrived 
at  by  us  in  preparing  the  special  agreement  which  we  have  signed 
to-day  for  the  submission  of  questions  relating  to  fisheries  on  the  north 
Atlantic  coast  under  the  general  treaty  of  arbitration  concluded  be- 
tween Great  Britain  and  the  United  States  on  the  4th  day  of  April, 
1908,  that  Question  5 of  the  series  submitted,  namely,  “From  where 
must  be  measured  the  ‘three  marine  miles  of  any  of  the  coasts,  bays, 
creeks  or  harbors’  referred  to  in  the  said  article”  is  submitted  in  its 
present  form  with  the  agreed  understanding  that  no  question  as  to  the 
Bay  of  Fundy,  considered  as  a whole  apart  from  its  bays  and  creeks, 
or  as  to  innocent  passage  through  the  Gut  of  Canso  is  included  in  this 
question  as  one  to  be  raised  in  the  present  arbitration;  it  being  the 
intention  of  the  parties  that  their  respective  views  or  contentions  on 
either  subject  shall  be  in  no  wise  prejudiced  by  anything  in  the  present 
arbitration. 


THE  NORTH  ATLANTIC  COAST  FISHERIES  CASE 


217 


I have  the  honor  to  be,  with  the  highest  consideration,  sir,  your 
most  obedient,  humble  servant, 

James  Bryce 

The  Honorable  Elihu  Root, 

Etc.,  etc.,  etc.. 

Secretary  of  State. 

Department  of  State, 
Washington,  February  21,  igog. 

Excellency  : I have  the  honor  to  inform  you  that  the  Senate,  by 
its  resolution  of  the  18th  instant,  gave  its  advice  and  consent  to  the 
ratification  of  the  special  agreement  between  the  United  States  and 
Great  Britain,  signed  on  January  27,  1909,  for  the  submission  to  the 
Permanent  Court  of  Arbitration  at  The  Hague  of  questions  relating 
to  fisheries  on  the  north  Atlantic  coast. 

In  giving  this  advice  and  consent  to  the  ratification  of  the  special 
agreement,  and  as  a part  of  the  act  of  ratification,  the  Senate  states 
in  the  resolution  its  understanding — “that  it  is  agreed  by  the  United 
States  and  Great  Britain  that  Question  5 of  the  series  submitted,  name- 
ly, ‘from  where  must  be  measured  the  three  marine  miles  of  any  of 
the  coasts,  bays,  creeks,  or  harbors  referred  to  in  said  article?’  does 
not  include  any  question  as  to  the  Bay  of  Fundy,  considered  as  a 
whole  apart  from  its  bays  or  creeks,  or  as  to  innocent  passage  through 
the  Gut  of  Canso,  and  that  the  respective  views  or  contentions  of  the 
United  States  and  Great  Britain  on  either  subject  shall  be  in  no  wise 
prejudiced  by  anything  in  the  present  arbitration,  and  that  this  agree- 
ment on  the  part  of  the  United  States  will  be  mentioned  in  the  ratifi- 
cation of  the  special  agreement  and  will,  in  effect,  form  part  of  this 
special  agreement.” 

In  thus  formally  confirming  what  I stated  to  you  orally,  I have  the 
honor  to  express  the  hope  that  you  will  in  like  manner  formally  con- 
firm the  assent  of  His  Majesty’s  Government  to  this  understanding 
w'hich  you  heretofore  stated  to  me  orally,  and  that  you  will  be  pre- 
pared at  an  early  day  to  exchange  the  notes  confirming  the  special 
agreement  as  provided  for  therein  and  in  the  general  arbitration  con- 
vention of  June  5,  1908. 

I have  the  honor  to  be,  with  the  highest  consideration,  your  Excel- 
lency’s most  obedient  servant, 

Robert  Bacon 

His  Excellency  The  Right  Honorable 

James  Bryce,  O.M., 

Ambassador  of  Great  Britain. 


218 


THE  HAGUE  COURT  REPORTS 


British  Embassy, 
Washington,  March  4,  igog. 

Sir:  I have  the  honor  to  acknowledge  the  receipt  of  your  note  in- 
forming me  that  the  Senate  of  the  United  States  has  approved  the 
special  agreement  for  the  reference  to  arbitration  of  the  questions  re- 
lating to  the  fisheries  on  the  north  Atlantic  coast  and  of  the  terms  of 
the  resolution  in  which  that  approval  is  given. 

It  is  now  my  duty  to  inform  you  that  the  Government  of  His  Britan- 
nic Majesty  confirms  the  special  agreement  aforesaid  and  in  so  doing 
confirms  also  the  understanding  arrived  at  by  us  that  Question  5 of 
the  series  of  questions  submitted  for  arbitration,  namely,  from  where 
must  be  measured  the  “three  marine  miles  of  any  of  the  coasts,  bays, 
creeks,  or  harbors”  referred  to  in  the  said  article,  is  submitted  in  its 
^ present  form  with  the  agreed  understanding  that  no  question  as  to 
■ the  Bay  of  Fundy  considered  as  a whole  apart  from  its  bays  or  creeks, 
I or  as  to  innocent  passage  through  the  Gut  of  Canso,  is  included  in  this 
I question  as  one  to  be  raised  in  the  present  arbitration,  it  being  the 
; intention  of  the  parties  that  their  respective  views  or  contentions  on 
, either  subject  shall  be  in  nowise  prejudiced  by  anything  in  the  present 
arbitration. 

This  understanding  is  that  which  was  embodied  in  notes  exchanged 
between  your  predecessor  and  myself  on  January  27th,  and  is  that 
expressed  in  the  above-mentioned  resolution  of  the  Senate  of  the 
United  States. 

I have  the  honor  to  be,  with  the  highest  respect,  sir,  your  most 
obedient,  humble  servant, 

James  Bryce 

The  Honorable  Robert  Bacon, 

Secretary  of  State. 


Department  of  State, 
Washington,  March  4,  igog. 

Excellency:  I have  the  honor  to  acknowledge  the  receipt  of  your 
note  of  the  4th  instant  in  which  you  confirm  the  understanding  in  the 
matter  of  the  special  agreement  submitting  to  arbitration  the  differ- 
ences between  the  Governments  of  the  United  States  and  Great 
Britain  concerning  the  north  Atlantic  fisheries,  as  expressed  in  the 
resolution  of  the  Senate  of  February  18,  1909,  and  as  previously 
agreed  upon  by  the  interchange  of  notes  with  my  predecessor  of 
January  27,  1909. 


THE  NORTH  ATLANTIC  COAST  FISHERIES  CASE 


219 


I therefore  have  the  honor  to  inform  you  that  this  Government  con- 
siders the  special  agreement  as  in  full  force  and  effect  from  and  after 
the  4th  day  of  March,  1909. 

I have  the  honor  to  be,  with  the  highest  consideration,  your  Excel- 
lency’s most  obedient  servant, 

Robert  Bacon 

His  Excellency  The  Right  Honorable 

James  Bryce,  O.M., 

Ambassador  of  Great  Britain. 


Resolution  of  the  United  States  Senate  concerning  N ewfoundland 

Fisheries^ 

February  i8,  ipop. 

/ Resolved  (two-thirds  of  the  Senators  present  concurring  therein), 

' That  the  Senate  advise  and  consent  to  the  ratification  of  a special 
; agreement  between  the  United  States  and  Great  Britain  for  the  sub- 
mission to  the  Permanent  Court  of  Arbitration  at  The  Hague  of 
questions  relating  to  fisheries  on  the  north  Atlantic  coast,  signed  on 
the  27th  day  of  January,  1909. 

In  giving  this  advice  and  consent  to  the  ratification  of  the  said  spe- 
cial agreement,  and  as  a part  of  the  act  of  ratification,  the  Senate 
understands  that  it  is  agreed  by  the  United  States  and  Great  Britain 
that  Question  5 of  the  series  submitted,  namely,  “from  where  must  be 
measured  the  ‘three  marine  miles  of  any  of  the  coasts,  bays,  creeks, 
or  harbors’  referred  to  in  the  said  article,”  does  not  include  any 
question  as  to  the  Bay  of  Fundy,  considered  as  a whole  apart  from 
its  bays,  or  creeks,  or  as  to  innocent  passage  through  the  Gut  of 
Canso,  and  that  the  respective  views  or  contentions  of  the  United 
States  and  Great  Britain  on  either  subject  shall  be  in  nowise  preju- 
diced by  anything  in  the  present  arbitration,  and  that  this  agreement 
on  the  part  of  the  United  States  will  be  mentioned  in  the  ratification 
of  the  special  agreement  and  will,  in  effect,  form  part  of  this  special 
agreement. 


^Malloy,  Treaties,  Conventions,  etc.,  between  the  United  States  and  Other 
Powers,  vol.  1,  p.  843. 


220 


THE  HAGUE  COURT  REPORTS 


Modus  vivendi  between  the  United  States  and  Great  Britain  in  re- 
gard to  inshore  fisheries  on  the  treaty  coast  of  Newfoundland — 
Agreement  effected  by  exchange  of  notes  signed  at  London,  July 
22/September  8, 

American  Embassy, 
London,  July  22,  igog. 

Inasmuch  as  under  the  provisions  of  the  special  agreement,  dated 
January  27,  1909,  between  the  United  States  and  Great  Britain  for 
the  submission  to  arbitration  of  certain  questions  arising  with  respect 
to  the  north  Atlantic  coast  fisheries,  the  decision  of  the  tribunal  on 
such  questions  will  not  be  rendered  before  the  summer  of  1910,  and 
inasmuch  as  the  modus  vivendi  entered  into  with  Great  Britain  last 
July  with  respect  to  the  Newfoundland  fisheries  does  not  in  terms 
extend  beyond  the  season  of  1908,  my  Government  thinks  it  desirable 
/that  the  modus  of  last  year  should  be  renewed  for  the  coming  season, 
and,  if  possible,  until  the  termination  of  the  arbitration  proceedings  for 
the  settlement  of  these  questions. 

' I am  therefore  instructed  to  propose  such  a renewal  to  His  Maj- 
esty’s Government,  the  understanding  on  both  sides  originally  having 
been,  as  you  may  remember,  that  the  modus  was  entered  into  pending 
arbitration. 

I have  the  honor  to  be,  with  the  highest  consideration,  sir,  your  mo/t 
obedient,  humble  servant, 

Whitelaw  Reid 

The  Right  Honorable  Sir  Edward  Grey,  Bt.,  etc.,  etc.,  etc. 

Foreign  Office,  September  8,  igog. 
Sir:  In  reply  to  Mr.  Whitelaw  Reid’s  note  of  July  22  last  I have 
the  honor  to  state  that  His  Majesty’s  Government  agree  to  the  re- 
newal of  the  modus  vivendi  of  1908  for  the  regulation  of  the  New- 
foundland fisheries,  until  the  termination  of  the  arbitration  proceed- 
■ ings  before  the  Hague  tribunal  for  the  settlement  of  the  Atlantic 
fisheries  questions. 

His  Majesty’s  Government  suggest  that  Mr.  Whitelaw  Reid’s  note 
of  July  22  and  my  present  reply  should  be  regarded  as  constituting 
a sufficient  ratification  of  the  above  understanding  without  the  necessity 
for  embodying  it  in  a more  formal  document. 

I have  the  honor  to  be,  with  high  consideration,  sir,  your  most 
obedient,  humble  servant, 

E.  Grey 

J.  R.  Carter,  Esq.,  etc.,  etc.,  etc. 


^Foreign  Relations  of  the  United  States,  1909,  p.  283. 


THE  NORTH  ATLANTIC  COAST  FISHERIES  CASE 


221 


Agreement  between  the  United  States  and  Great  Britain  adopting 
with  certain  modifications  the  rules  and  method  of  procedure  rec- 
ommended in  the  award  of  September  j,  ipio,  of  the  north  Atlan- 
tic coast  fisheries  arbitration. — Signed  at  Washington,  July  20,  ipi2.^ 

The  United  States  of  America  and  His  Majesty  the  King  of  the 
United  Kingdom  of  Great  Britain  and  Ireland  and  of  the  British  Do- 
minions beyond  the  Seas,  Emperor  of  India,  being  desirous  of  con- 
cluding an  agreement  regarding  the  exercise  of  the  liberties  referred 
to  in  Article  1 of  the  treaty  of  October  20,  1818,  have  for  this  pur- 
pose named  as  their  plenipotentiaries : 

The  President  of  the  United  States  of  America: 

Chandler  P.  Anderson,  Counselor  for  the  Department  of  State  of 
the  United  States ; 

His  Britannic  Majesty: 

Alfred  Mitchell  Innes,  Charge  d" Affaires  of  His  Majesty’s  Embassy 
at  Washington; 

Who,  having  communicated  to  each  other  their  respective  full 
powers,  which  were  found  to  be  in  due  and  proper  form,  have  agreed 
to  and  concluded  the  following  articles : 


Article  1 

Whereas  the  award  of  the  Hague  tribunal  of  September  7,  1910, 
recommended  for  the  consideration  of  the  parties  certain  rules  and  a 
method  of  procedure  ^nder  which  all  questions  which  may  arise  in 
/ the  future  regarding  the  exercise  of  the  liberties  referred  to  in 
/ Article  1 of  the  treaty  of  October  20,  1818,  may  be  determined  in 
accordance  with  the  principles  laid  down  in  the  award,  and  the  par- 
ties having  agreed  to  make  certain  modifications  therein,  the  rules 

Vand  method  of  procedure  so  modified  are  hereby  accepted  by  the 
parties  in  the  following  form^ 

1.  All  future  municipal  laws,  ordinances,  or  rules  for  the  regula- 
tion of  the  fisheries  by  Great  Britain,  Canada,  or  Newfoundland  in 
respect  of  (1)  the  hours,  days,  or  seasons  when  fish  may  be  taken 
on  the  treaty  coasts;  (2)  the  method,  means,  and  implements  used 
in  the  taking  of  fish  or  in  carrying  on  fishing  operations;  (3)  any 
mother  regulations  of  a similar  character;  anciall  alterations  or  amend- 
I ments  of  such  laws,  ordinances,  or  rules  snail  be  promulgated  and 
I come  into  operation  within  the  first  fifteen  days  of  November  in  each 
Vyear  ;'^rovided,  however,  in  so  far  as  any  such  law,  ordinance,  or  rule 


U.  S.  Statutes  at  Large,  vol.  37,  pt.  2,  p.  1634. 


222 


THE  HAGUE  COURT  REPORTS 


shall  apply  to  a fishery  conducted  between  the  1st  day  of  November 
and  the  1st  day  of  February,  the  same  shall  be  promulgated  at  least 
six  months  before  the  1st  day  of  November  in  each  year. 

(Such  laws,  ordinances,  or  rules  by  Great  Britain  shall  be  promul- 
gated by  publication  in  the  London  Gazette,  by  Canada  in  the  Canada 
Gazette,  and  by  Newfoundland  in  the  Newfoundland  Gazette. 

After  the  expiration  of  ten  years  from  the  date  of  this  agreement, 
and  so  on  at  intervals  of  ten  years  thereafter,  either  party  may  pro- 
pose to  the  other  that  the  dates  fixed  for  promulgation  be  revised  in 
consequence  of  the  varying  conditions  due  to  changes  in  the  habits  of 
the  fish  or  other  natural  causes;  and  if  there  shall  be  a difference 
of  opinion  as  to  whether  the  conditions  have  so  varied  as  to  render 
a revision  desirable,  such  difference  shall  be  referred  for  decision  to 
a commission  possessing  expert  knowledge,  such  as  the  permanent 
mixed  fishery  commission  hereinafter  mentioned. 

2.  If  the  Government  of  the  United  States  considers  any  such  laws 
for  regulations  inconsistent  with  the  treaty  of  1818,  it  is  entitled  so  to 
notify  the  Government  of  Great  Britain  within  forty-five  days  after 
the  publication  above  referred  to,  and  may  require  that  the  same  be 
submitted  to  and  their  reasonableness,  within  the  meaning  of  the 
award,  be  determined  by  the  permanent  mixed  fishery  commission 
’‘"'Constituted  as  hereinafter  provided. 

3.  Any  law  or  regulation  not  so  notified  within  the  said  period  of 
forty-five  days,  or  which,  having  been  so  notified,  has  been  declared 
reasonable  and  consistent  with  the  treaty  of  1818  (as  interpreted  by 
the  said  award)  by  the  permanent  mixed  fishery  commission,  shall  be 
held  to  be  reasonable  within  the  meaning  of  the  award ; but  if  de- 
clared by  the  said  commission  to  be  unreasonable  and  inconsistent  with 
the  treaty  of  1818,  it  shall  not  be  applicable  to  the  inhabitants  of  the 
United  States  exercising  their  fishing  liberties  under  the  treaty  of 
1818. 

4.  Permanent  mixed  fishery  commissions  for  Canada  and  Newfound- 
land, respectively,  shall  be  established  for  the  decision  of  such  ques- 
tions as  to  the  reasonableness  of  future  regulations,  as  contemplated 
by  Article  4 of  the  special  agreement  of  January  27,  1909.  These 
Commissions  shall  consist  of  an  expert  national,  appointed  by  each 
/ party  for  five  years ; the  third  member  shall  not  be  a national  of  either 
I party.  He  shall  be  nominated  for  five  years  by  agreement  of  the 
V parties,  or,  failing  such  agreement,  within  two  months  from  the  date, 
\^hen  either  of  the  parties  to  this  agreement  shall  call  upon  the  other 


THE  NORTH  ATLANTIC  COAST  FISHERIES  CASE 


223 


|to  agree  upon  such  third  member,  he  shall  be  nominated  by  Her 
Majesty  the  Queen  of  the  Netherlands?^ 

5.  The  two  national  members  shall  t/e  summoned  by  the  Govern- 
ment of  Great  Britain,  and  shall  convene  within  thirty  days  from  the 
date  of  notification  by  the  Government  of  the  United  States.  These 
two  members  having  failed  to  agree  on  any  or  all  of  the  questions  sub- 
mitted within  thirty  days  after  they  have  convened,  or  having  before 
the  expiration  of  that  period  notified  the  Government  of  Great 
Britain  that  they  are  unable  to  agree,  the  full  commission,  under  the 
presidency  of  the  umpire,  is  to  be  summoned  by  the  Government  of 
Great  Britain,  and  shall  convene  within  thirty  days  thereafter  to  de- 
cide all  questions  upon  which  the  two  national  members  had  dis- 
agreed. The  commission  must  deliver  its  decision,  if  the  two  Gov- 
ernments do  not  agree  otherwise,  within  forty-five  days  after  it  has 
convened.  The  umpire  shall  conduct  the  procedure  in  accordance 
with  that  provided  in  Chapter  IV  of  the  Convention  for  the  pacific 
settlement  of  international  disputes,  of  October  18,  1907,  except  in  so 
far  as  herein  otherwise  provided. 

6.  The  form  of  convocation  of  the  commission,  including  the  terms 
of  reference  of  the  question  at  issue,  shall  be  as  follows : 


The  provision  hereinafter  fully  set  forth  of  an  act  dated 

published  in  the Gazette,  has  been  notified  to  the  Govern- 

ment of  Great  Britain  by  the  Government  of  the  United  States 

under  date  of , as  provided  by  the  agreement  entered  into 

on  July  20,  1912,  pursuant  to  the  award  of  the  Hague  tribunal  of 
September  7,  1910. 

Pursuant  to  the  provisions  of  that  agreement  the  Government 
of  Great  Britain  hereby  summons  the  permanent  mixed  fishery 
commission  for 

,]■  composed  of  commissioner  for  the 

\ Newfoundland  j 

United  States  of  America,  and  of commissioner  for 

j Canada  ) shall  meet  at  Halifax,  Nova  Scotia,  with 

( Newfoundland  ) 

power  to  hold  subsequent  meetings  at  such  other  place  or  places 
as  they  may  determine,  and  render  a decision  within  thirty  days 
as  to  whether  the  provision  so  notified  is  reasonable  and  consistent 
with  the  treaty  of  1818,  as  interpreted  by  the  award  of  the  Hague 
tribunal  of  September  7,  1910,  and  if  not,  in  what  respect  it  is 
unreasonable  and  inconsistent  therewith. 

Failing  an  agreement  on  this  question  within  thirty  days,  the 
commission  shall  so  notify  the  Government  of  Great  Britain  in 


224 


THE  HAGUE  COURT  REPORTS 


order  that  the  further  action  required  by  that  award  shall  be  taken 
for  the  decision  of  the  above  question. 

The  provision  is  as  follows  

7.  The  unanimous  decision  of  the  two  national  commissioners,  or 
the  majority  decision  of  the  umpire  and  one  commissioner,  shall  be 
final  and  binding. 

8.  Any  difference  in  regard  to  the  regulations  specified  in  Protocol 
XXX  of  the  arbitration  proceedings,  which  shall  not  have  been  dis- 
posed of  by  diplomatic  methods,  shall  be  referred  not  to  the  commis- 
sion of  expert  specialists  mentioned  in  the  award  but  to  the  permanent 
mixed  fishery  commissions,  to  be  constituted  as  hereinbefore  provided, 
in  the  same  manner  as  a difference  in  regard  to  future  regulations 
would  be  so  referred. 

Article  2 

And  whereas  the  tribunal  of  arbitration  in  its  award  decided  that — 

In  case  of  bays  the  three  marine  miles  are  to  be  measured  from  a 
straight  line  drawn  across  the  body  of  water  at  the  place  where  it 
ceases  to  have  the  configuration  and  characteristics  of  a bay.  At  all 
other  places  the  three  marine  miles  are  to  be  measured  following  the 
sinuosities  of  the  coast. 

And  whereas  the  tribunal  made  certain  recommendations  for  the 
determination  of  the  limits  of  the  bays  enumerated  in  the  award ; 

Now,  therefore,  it  is  agreed  that  the  recommendations,  in  so  far  as 
the  same  relate  to  bays  contiguous  to  the  territory  of  the  Dominion  of 
Canada,  to  which  Question  5 of  the  special  agreement  is  applicable, 
^e  hereby  adopted,  to  wit : 

f In  every  bay  not  hereinafter  specifically  provided  for,  the  limits  of 
exclusion  shall  be  drawn  three  miles  seaward  from  a straight  line 
across  the  bay  in  the  part  nearest  the  entrzmce  at  the  first  point  where 
the  width  does  not  exceed  ten  miles. 

For  the  Bale  des  Chaleurs  the  limits  of  exclusion  shall  be  drawn 
from  the  line  from  the  light  at  Birch  Point  on  Miscou  Island  to  Mac- 
quereau  Point  light ; for  the  Bay  of  Miramichi,  the  line  from  the  light 
at  Point  Escuminac  to  the  light  on  the  eastern  point  of  Tabisintac 
Gully;  for  Egmont  Bay,  in  Prince  Edward  Island,  the  line  from  the 
light  of  Cape  Egmont  to  the  light  of  West  Point ; and  off  St.  Ann’s 
Bay,  in  the  Province  of  Nova  Scotia,  the  line  from  the  light  at  Point 
Anconi  to  the  nearest  point  on  the  opposite  shore  of  the  mainland. 

For  or  near  the  following  bays  the  limits  of  exclusion  shall  be  three 
marine  miles  seawards  from  the  following  lines,  namely: 


THE  NORTH  ATLANTIC  COAST  FISHERIES  CASE 


225 


For  or  near  Barrington  Bay,  in  Nova  Scotia,  the  line  from  the  light 
on  Stoddard  Island  to  the  light  on  the  south  point  of  Cape  Sable, 
thence  to  the  light  at  Baccaro  Point;  at  Chedabucto  and  St.  Peter’s 
Bays,  the  line  from  Cranberry  Island  light  to  Green  Island  light,  thence 
to  Point  Rouge;  for  Mira  Bay,  the  line  from  the  light  on  the  east  point 
of  Scatary  Island  to  the  northeasterly  point  of  Cape  Morien. 

Long  Island  and  Bryer  Island,  on  St.  Mary’s  Bay,  in  Nova  Scotia, 
shall,  for  the  purpose  of  delimitation,  be  taken  as  the  coasts  of  such 
bays. 

^It  is  understood  that  the  award  does  not  cover  Hudson  Bay. 

Article  3 

It  is  further  agreed  that  the  delimitation  of  all  or  any  of  the  bays 
on  the  coast  of  Newfoundland,  whether  mentioned  in  the  recom- 
mendations or  not,  does  not  require  consideration  at  present. 

Article  4 

The  present  agreement  shall  be  ratified  by  the  President  of  the 
United  States,  by  and  with  the  advice  and  consent  of  the  Senate  there- 
of, and  by  His  Britannic  Majesty,  and  the  ratifications  shall  be  ex- 
changed in  Washington  as  soon  as  practicable. 

In  faith  whereof  the  respective  plenipotentiaries  have  signed  this 
agreement  in  duplicate  and  have  hereunto  affixed  their  seals. 

Done  at  Washington  on  the  20th  day  of  July,  one  thousand  nine 
hundred  and  twelve. 

Chandler  P.  Anderson  [seal] 
Alfred  Mitchell  Innes  [seal] 


THE  ORINOCO  STEAMSHIP  COMPANY 

CASE 

between 

THE  UNITED  STATES  and  VENEZUELA 
Decided  October  25,  1910 
Syllabus 

This  claim  originated  in  a concession  from  Venezuela  to  one  Ellis 
Grell,  granted  on  January  17,  1894,^  for  the  exclusive  right  to  navigate 
the  Orinoco  River  in  steam  vessels  between  Trinidad  and  Ciudad  Boli- 
var. The  contract  embodying  the  concession  contained  the  so-called 
Calvo  clause,  which  provided  that  “questions  and  controversies  which 
may  arise  with  regard  to  the  interpretation  or  execution  of  this  con- 
tract shall  be  resolved  by  the  tribunals  of  the  Republic  in  accordance 
with  its  laws,  and  shall  not  in  any  case  give  occasion  for  international 
reclamations.” 

By  subsequent  assignment  the  Grell  concession  came  into  possession 
of  the  Orinoco  Shipping  and  Trading  Company,  a British  corporation, 
the  majority  of  the  stock  and  bonds  of  which  was  held  by  American 
citizens.  The  Government  of  Venezuela  became  indebted  to  this  com- 
pany for  approximately  half  a million  dollars  for  services  rendered 
and  damages  sustained.  An  adjustment  was  effected  on  May  10,  1900, 
by  which  the  concession  was  extended  for  a period  of  six  years  and 
the  Government  agreed  to  pay  the  company  100,000  bolivars  ($19,200) 
in  cash  and  a second  sum  of  the  same  amount  at  a later  date.  The 
company,  on  its  part,  acknowledged  as  settled  all  its  claims  against  the 
Government.  The  contract  of  settlement  also  contained  the  so-called 
Calvo  clause.  The  first  payment  of  100,000  bolivars  was  duly  made, 
but  the  second  was  not. 

On  October  5,  1900,  Venezuela  opened  the  navigation  of  the  Orinoco 
River  to  the  commerce  of  all  nations,  thus  destroying  the  monopoly 
claimed  by  the  company  as  assignee  of  the  Grell  concession.  This 
was  done  by  repealing  a decree  promulgated  on  July  1,  1893”  a few 
months  before  the  original  concession  was  granted,  which  closed  the 
Orinoco  to  foreign  trade.  On  December  14,  1901,  the  Venezuelan 
Government  further  cancelled  the  extension  of  the  concession  granted 
in  accordance  with  the  contract  of  settlement  of  May  10,  1900.  The 
company’s  efforts  to  obtain  relief  from  the  Government  of  Venezuela 
being  unsuccessful,  the  matter  was  brought  to  the  attention  of  the 
American  and  British  Governments.  Later,  the  American  stock- 


^Post,  p.  258. 


^Post,  p.  253. 


THE  ORINOCO  STEAMSHIP  COMPANY  CASE 


227 


holders  of  the  British  company  organized  an  American  corporation 
known  as  the  Orinoco  Steamship  Company,  which  took  over  the  busi- 
ness, assets  and  liabilities  of  the  former  company.  The  claims  of  the 
corporation  taken  over  from  the  company  for  the  payment  overdue 
under  the  agreement  of  May  10,  1900,  for  damages  arising  from  the 
annulment  of  the  exclusive  concession,  for  services  rendered,  imposts 
illegally  exacted,  for  the  use  and  detention  of  and  damages  to  vessels, 
loss  of  earnings  and  counsel  fees,  amounting  to  approximately 
$1,400,000,  were  presented  to  the  United  States  and  Venezuelan  claims 
commission  under  the  protocol  of  February  17,  1903.^  The  commis- 
sion assumed  jurisdiction  of  the  claims  under  the  wording  of  the 
protocol,  which  included  “all  claims  owned  by  citizens  of  the  United 
States,”  and  the  umpire,  Dr.  Barge,  on  February  22,  1904,^  made  an 
award  in  favor  of  the  claimants,  amounting  to  approximately  $28,000, 
covering  the  detention  and  use  of  steamers,  goods  delivered  to  the 
Government  and  passages  furnished  it. 

Although  the  protocol  provided  that  the  decision  of  the  commission 
and  of  the  umpire  should  be  final  and  conclusive,  the  United  States 
protested  the  award  on  the  grounds  that  it  disregarded  the  terms  of 
the  protocol  and  contained  essential  errors  of  law  and  fact  such  as 
invalidated  it  in  accordance  with  the  principles  of  international  law. 

After  several  years  of  negotiations  about  this  and  other  claims,  in 
the  course  of  which  diplomatic  relations  were  severed,  a protocol  was 
signed  on  February  13,  1909,®  which  provided  for  the  submission  of 
the  case  to  arbitration  in  the  following  form : 

The  arbitral  tribunal  shall  first  decide  whether  the  decision  of  um- 
pire Barge,  in  this  case,  in  view  of  all  the  circumstances  and  under 
the  principles  of  international  law,  is  not  void,  and  whether  it  must 
be  considered  so  conclusive  as  to  preclude  a reexamination  of  the 
case  on  its  merits.  If  the  arbitral  tribunal  decides  that  said  decision 
must  be  considered  final,  the  case  will  be  considered  by  the  United 
States  of  America  as  dosed;  but  on  the  other  hand,  if  the  arbitral 
tribunal  decides  that  said  decision  of  umpire  Barge  should  not  be 
considered  as  final,  said  tribunal  shall  then  hear,  examine  and  deter- 
mine the  case  and  render  its  decision  on  the  merits.^ 

The  tribunal,  composed  of  three  members  selected  from  the  Perma- 
nent Court  of  Arbitration  at  The  Hague,  none  of  whom  could  be  a 
citizen  of  either  of  the  contracting  countries,  was  constituted  as  fol- 
lows : Heinrich  Lammasch  of  Austria,  Auguste  M.  F.  Beernaert  of 
Belgium,  and  Gonzalo  de  Quesada  of  Cuba.  Its  sessions  began  Sep- 
tember 28  and  ended  October  19,  1910,  the  decision  being  rendered  on 
October  25,  1910. 

The  tribunal  held  that,  while  on  principle  an  arbitral  decision  should 
be  accepted,  respected  and  carried  out  without  any  reservation,  in 


^Ante,  p.  74. 


^Post,  p.  255. 


^Post,  p.  235. 


*Post,  p.  236. 


228 


THE  HAGUE  COURT  REPORTS 


this  case  the  parties  had  admitted  in  the  protocol  of  submission  that 
excess  of  jurisdiction  and  essential  error  nullified  an  arbitral  judg- 
ment, and  called  upon  the  tribunal  to  decide  whether  the  judgment  of 
umpire  Barge  was  not  void,  and,  if  so,  to  reexamine  the  case  on  its 
merits.  The  tribunal  further  held  that  the  nullity  of  one  claim  in  an 
arbitral  award  embracing  several  independent  claims  does  not  nullify 
the  others.  The  tribunal  then  proceeded  to  examine  each  item  con- 
sidered by  the  former  award  and  decided  as  follows : 

The  decision  upon  the  claims  based  upon  the  annulment  of  the  con- 
cession was  not  vitiated  by  excess  of  authority  or  essential  error,  and 
was  therefore  not  subject  to  revision. 

In  view  of  the  express  provisions  of  the  agreement  of  submission 
of  February  17,  1903,  that  the  umpire  was  to  decide  according  to 
absolute  equity  and  without  regard  to  objections  of  a technical  nature 
or  the  provisions  of  local  legislation,  umpire  Barge  exceeded  his  juris- 
diction in  rejecting  the  claim  for  payment  due  under  the  contract  of 
May  10,  1900,  because  of  the  failure  of  the  claimants  to  appeal  to  the 
Venezuelan  courts,  in  accordance  with  the  Calvo  clause  of  the  con- 
tracts, and  to  notify  the  Government  of  the  assignment  of  the  claim, 
in  accordance  with  local  law.  The  claim  was  declared  to  be  well 
founded  and  accordingly  allowed. 

The  tribunal  made  the  same  holding  with  reference  to  claims  for 
transportation  of  passengers  and  merchandise  and  for  the  retention 
and  hire  of  steamers,  which  were  disallowed  by  the  former  award 
because  the  claimants  omitted  to  notify  Venezuela  of  the  assignment 
of  them. 

The  balance  of  the  former  decision  with  reference  to  the  remaining 
claims  was  held  not  subject  to  reexamination  or  revision,  except  that 
a portion  of  the  amount  claimed  for  counsel  fees  and  expenses  of 
litigation  was  allowed. 

The  claims  allowed  by  the  tribunal  amounted  to  $64,412.59,  in 
addition  to  the  $28,224.93  allowed  by  the  original  decision,  making 
a total  recovery  of  $92,637.52,  upon  which  interest  was  allowed  at 
the  rate  of  three  per  cent. 

With  the  above  exceptions,  the  decision  of  umpire  Barge  was  held 
to  remain  in  full  force  and  effect. 


AWARD  OF  THE  TRIBUNAL 

Award  of  the  tribunal  of  arbitration  constituted  under  an  Agree- 
ment signed  at  Caracas,  February  ij,  igog,  between  the  United 
States  of  America  and  the  United  States  of  Venezuela. — The 
Hague,  October  2^,  igio.^ 

By  an  agreement  signed  at  Caracas  the  13th  of  February,  1909,® 


^Official  report,  p.  64.  For  the  original  French  text,  see  Appendix,  p.  504. 
^Post,  p.  235. 


THE  ORINOCO  STEAMSHIP  COMPANY  CASE 


229 


the  United  States  of  America  and  of  Venezuela  have  agreed  to 
submit  to  a tribunal  of  arbitration,  composed  of  three  arbitrators, 
chosen  from  the  Permanent  Court  of  Arbitration,  a claim  of  the 
United  States  of  America  against  the  United  States  of  Venezuela; 

This  agreement  states : 

The  arbitral  tribunal  shall  first  decide  whether  the  decision  of 
umpire  Barge, ^ in  this  case,  in  view  of  all  the  circumstances  and 
under  the  principles  of  international  law,  is  not  void,  and  whether  it 
must  be  considered  to  be  so  conclusive  as  to  preclude  a reexamina- 
tion of  the  case  on  its  merits.  If  the  arbitral  tribimal  decides  that 
said  decision  must  be  considered  final,  the  case  will  be  considered 
by  the  United  States  of  America  as  closed;  but  on  the  other  hand, 
if  the  arbitral  tribunal  decides  that  said  decision  of  umpire  Barge 
should  not  be  considered  as  final,  the  said  tribunal  shall  then  hear, 
examine  and  determine  the  case  and  render  its  decisions  on  its 
merits.^ 

In  virtue  of  said  agreement,  the  two  Governments  respectively 
have  named  as  arbitrators  the  following  members  of  the  Permanent 
Court  of  Arbitration: 

His  Excellency  Gonzalo  de  Quesada  Envoy  Extraordinary  and 
Minister  Plenipotentiary  of  Cuba  at  Berlin,  etc. ; 

His  Excellency  A.  Beemaert,  Minister  of  State,  member  of  the 
Chamber  of  Representatives  of  Belgium,  etc. ; 

And  the  arbitrators  so  designated,  in  virtue  of  said  agreement, 
have  named  as  umpire: 

Mr.  H.  Lammasch,  professor  in  the  University  of  Vienna,  mem- 
ber of  the  Upper  House  of  the  Austrian  Parliament,  etc. ; 

The  cases,  counter-cases  and  conclusions  have  been  duly  sub- 
mitted to  the  arbitrators  and  communicated  to  the  parties ; 

The  parties  have  both  pleaded  and  replied,  both  having  pleaded 
the  merits  of  the  case,  as  well  as  the  previous  question,  and  the  dis- 
cussion was  declared  closed  on  October  19th,  1910; 

Upon  which  the  tribunal,-  after  mature  deliberation,  pronounces 
as  follows: 

Whereas  by  the  terms  of  an  agreement  dated  February  17th, 


^Post,  p.  255. 


^Post,  p.  236. 


230 


THE  HAGUE  COURT  REPORTS 


1903/  a mixed  commission  was  charged  with  the  decision  of  all 
claims  owned  (poseidas)  by  citizens  of  the  United  States  of  America 
against  the  Republic  of  Venezuela,  which  shall  not  have  been  settled 
by  a diplomatic  agreement  or  by  arbitration  between  the  two  Gov- 
ernments and  which  shall  have  been  presented  by  the  United  States 
of  America;  an  umpire,  to  be  named  by  Her  Majesty  the  Queen  of 
the  Netherlands,  was  eventually  to  give  his  final  and  conclusive 
decision  (definitiva  y concluyente)  on  any  question  upon  which  the 
commissioners  might  not  have  been  able  to  agree ; 

Whereas  the  umpire  thus  appointed,  Mr.  Barge,  has  pronounced 
on  the  said  claims  on  the  22nd  of  February  1904; 

Whereas  it  is  assuredly  in  the  interest  of  peace  and  the  develop- 
ment of  the  institution  of  international  arbitration,  so  essential  to 
the  well-being  of  nations,  that  on  principle,  such  a decision  be  ac- 
cepted, respected  and  carried  out  by  the  parties  without  any  reser- 
vation, as  it  is  laid  down  in  Article  81  of  the  Convention  for  the 
pacific  settlement  of  international  disputes  of  October  18th,  1907 ; 

and  besides  no  jurisdiction  whatever  has  been  instituted  for  recon- 

sidering  similar  decisions; 

But  whereas  in  the  present  case,  it  having  been  argued  that  the 
decision  is  void,  the  parties  have  entered  into  a new  agreement 
under  date  of  the  13th  of  February  1909,  according  to  which, 
without  considering  the  conclusive  character  of  the  first  decision, 
this  tribunal  is  called  upon  to  decide  whether  the  decision  of  umpire 
Barge,  in  virtue  of  the  circumstances  and  in  accordance  with  the 
principles  of  international  law,  be  not  void,  and  whether  it  must  be 
considered  so  conclusive  as  to  preclude  a reexamination  of  the  case 
on  its  merits; 

Whereas  by  the  agreement  of  February  13th,  1909,^  both  parties 
have  at  least  implicitly  admitted,  as  vices  involving  the  nullity  of  an 
arbitral  decision,  excessive  exercise  of  jurisdiction  and  essential 
error  in  the  judgment  (exceso  de  poder  y error  esencial  cn  el  fallo)  ; 

Whereas  the  plaintiff  party  alleges  excessive  exercise  of  jurisdic- 
tion and  numerous  errors  in  law  and  fact  equivalent  to  essential 
error ; 

*An  agreement  providing  for  the  creation  of  the  mixed  commission  for  the 
settlement  of  claims  of  citizens,  corporations,  etc.,  of  the  United  States  against 
Venezuela.  See  ante,  p.  74. 

^Post,  p.  235. 


THE  ORINOCO  STEAMSHIP  COMPANY  CASE 


231 


Whereas,  following  the  principles  of  equity  in  accordance  with 
law,  when  an  arbitral  award  embraces  several  independent  claims, 
and  consequently  several  decisions,  the  nullity  of  one  is  without 
influence  on  any  of  the  others,  more  especially  when,  as  in  the  pres- 
ent case,  the  integrity  and  the  good  faith  of  the  arbitrator  are  not 
questioned;  this  being  groimd  for  pronouncing  separate V on  each 
of  the  points  at  issue ; 

I.  As  regards  the  1,209,701.04  dollars: 

Whereas  this  tribunal  is  in  the  first  place  called  upon  to  decide 
whether  the  award  of  the  umpire  is  void,  and  whether  it  must  be 
considered  conclusive ; and  whereas  this  tribunal  would  have  to  de- 
cide on  the  merits  of  the  case  only  if  the  umpire’s  award  be  de- 
clared void ; 

Whereas  it  is  alleged  that  the  umpire  deviated  from  the  terms 
of  the  agreement  by  giving  an  inexact  account  of  the  Grell  contract 
and  the  claim  based  on  it,  and  in  consequence  thereof  fell  into  an 
essential  error;  but  since  the  award  reproduces  said  contract  textu- 
ally  and  in  its  entire  tenor;  whereas  it  is  scarcely  admissible  that 
the  umpire  should  have  misunderstood  the  text  and  should  have 
exceeded  his  authority  by  pronouncing  on  a claim  which  had  not 
been  submitted  to  him,  by  failing  to  appreciate  the  connection  be- 
tween the  concession  in  question  and  exterior  navigation,  the  umpire 
having  decided  in  terminis,  that  “the  permission  to  navigate  these 
channels  w^as  only  annexed  to  the  permission  to  call  at  Trinidad”; 

Whereas  the  appreciation  of  the  facts  of  the  case  and  the  inter- 
pretation of  the  documents  were  within  the  competence  of  the  um- 
pire and  as  his  decisions,  when  based  on  such  interpretation,  are 
not  subject  to  revision  by  this  tribunal,  whose  duty  it  is  not  to  say 
if  the  case  had  been  well  or  ill  judged,  but  whether  the  award  must 
be  annulled;  that  if  an  arbitral  decision  could  be  disputed  on  the 
ground  of  erroneous  appreciation,  appeal  and  revision,  which  the 
Conventions  of  The  Hague  of  1899  and  1907  made  it  their  object  to 
avert,  would  be  the  general  rule; 

Whereas  the  point  of  view  from  which  the  umpire  considered  the 
claim  of  $513,000  (afterwards  reduced  in  the  conclusions  of  the 
United  States  of  America  to  $335,000,  and  being  part  of  said  sum 


232 


THE  HAGUE  COURT  REPORTS 


of  $1,209,701.04),  is  the  consequence  of  his  interpretation  of  the 
contract  of  May  10th,  1900,  and  of  the  relation  between  this  contract 
and  the  decree  of  the  same  date; 

WTiereas  the  circumstance  that  the  umpire,  not  content  to  have 
based  his  award  on  his  interpretation  of  the  contracts,  which  of 
itself  should  be  deemed  sufficient,  h?s  invoked  other  subsidiary  rea- 
sons, of  a rather  more  technical  chayacter,  can  not  vitiate  his  deci- 
sion; 

II.  As  regards  the  19,200  dollars  (100,000  bolivares)  : 

WTiereas  the  agreement  of  February  17th,  1903,  did  not  invest  the 
arbitrators  with  discretionary  powers,  but  obliged  them  to  give  their 
decision  on  a basis  of  absolute  equity  without  regard  to  objections 
of  a technical  nature,  or  to  the  provisions  of  local  legislation  (con 
arreglo  absolute  d la  equidad,  sin  reparar  cn  objeciones  tecnicas,  ni 
en  las  disposiciones  de  la  legislacion  local) ; 

Whereas  excessive  exercise  of  power  may  consist,  not  only  in 
deciding  a question  not  submitted  to  the  arbitrators,  but  also  in 
misinterpreting  the  express  provisions  of  the  agreement  in  respect 
of  the  way  in  which  they  are  to  reach  their  decisions,  notably  with 
regard  to  the  legislation  or  the  principles  of  law  to  be  applied ; 

Whereas  the  only  motives  for  the  rejection  of  the  claim  for 
19,200  dollars  are:  1st,  the  absence  of  all  appeal  to  the  Venezuelan 
courts  of  justice,  and  2nd,  the  omission  of  any  previous  notification 
of  cession  to  the  debtor,  it  being  evident  that  “the  circumstance 
that  the  question  might  be  asked  if  on  the  day  this  claim  was  filed, 
this  indebtedness  was  proved  compellable,”  could  not  serve  as  a 
justification  of  rejection; 

WTiereas  it  follows  from  the  agreements  of  1903  and  1909 — on 
which  the  present  arbitration  is  based — that  the  United  States  of 
Venezuela  had  by  convention  renounced  invoking  the  provisions  of 
Article  14  of  the  Grell  contract  and  of  Article  4 of  the  contract  of 
May  10th,  1900,  and  as  at  the  date  of  said  arguments  it  was,  in  fact, 
certain  that  no  lawsuit  between  the  parties  had  been  brought  before 
the  Venezuelan  courts  and  as  the  maintenance  of  Venezuelan  juris- 
diction with  regard  to  these  claims  would  have  been  incompatible 
and  irreconcilable  with  the  arbitration  which  had  been  instituted ; 


THE  ORINOCO  STEAMSHIP  COMPANY  CASE 


233 


Whereas  there  is  a question  not  of  the  cession  of  a concession 
but  of  the  cession  of  a debt,  and  as  the  omission  to  notify  previously 
the  cession  of  a debt  constitutes  but  a failure  to  observe  a prescrip- 
tion of  local  legislation,  though  a similar  prescription  also  exists  in 
other  legislations,  it  can  not  be  considered  as  required  by  absolute 
equity,  at  least  when  the  debtor  actually  possessed  knowledge  of  the 
cession  and  has  paid  neither  the  assignor  nor  the  assignee ; 

III.  As  regards  the  147,638.79  dollars: 

Whereas  with  regard  to  the  1,053  dollars  for  the  transport  of 
passengers  and  merchandise  in  1900  and  the  25,845.20  dollars  for 
the  hire  of  the  steamers  Delta,  Socorro,  Masparro,  Guanare,  Heroe, 
from  July  1900  to  April  1902,  the  award  of  the  umpire  is  based 
only  on  the  omission  of  previous  notification  of  the  cession  to  the 
Government  of  Venezuela  or  of  the  acceptance  by  it,  this  means  of 
defense  being  eliminated  by  the  agreement,  as  mentioned  before; 

Whereas  the  same  might  be  said  of  the  claim  for  19,571.34  dollars 
for  the  restitution  of  national  taxes,  said  to  have  been  collected 
contrary  to  law,  and  of  that  of  3,509.22  dollars  on  account  of  the 
retention  of  the  Bolivar;  but  as  it  has  not  been  proved  on  the  one 
hand  that  the  taxes  here  under  discussion  belonged  to  those  from 
which  the  Orinoco  Shipping  and  Trading  Company  was  exempt, 
and  on  the  other  hand  that  the  fact  objected  to  proceeded  from 
abuse  of  authority  on  the  part  of  the  Venezuelan  consul;  and  as 
both  claims  must  therefore  be  rejected  on  their  merits,  though  on 
other  grounds,  the  annulment  of  the  award  on  this  point  would  be 
without  interest; 

Whereas  the  decision  of  the  umpire,  allowing  27,692.31  dollars 
instead  of  28,461.53  dollars  for  the  retention  and  hire  of  the  Mas- 
parro and  Socorro  from  March  21st  to  September  18th,  1902,  as  re- 
gards the  769.22  dollars  disallowed,  is  based  here  also  only  on  the 
omission  of  notification  of  the  cession  of  the  debt ; 

Whereas  the  umpire’s  decision  with  regard  to  the  other  claims 
included  under  this  head  for  the  period  after  April  1st,  1902,  is  based 
on  a consideration  of  facts  and  on  an  interpretation  of  legal  prin- 
ciples which  are  subject  neither  to  reexamination  nor  to  revision  by 
this  tribimal,  the  decisions  awarded  on  these  points  not  being  void ; 


234 


THE  HAGUE  COURT  REPORTS 


IV.  As  regards  the  25,000  dollars: 

WTiereas  the  claim  for  25,000  dollars  for  counsel  fees  and  ex- 
f>enses  of  litigation  has  ben  disallowed  by  the  umpire  in  consequence 
of  the  rejection  of  the  greater  part  of  the  claims  of  the  United 
States  of  America,  and  as  by  the  present  award  some  of  these 
claims  having  been  admitted  it  seems  equitable  to  allow  part  of  this 
sum,  which  the  tribunal  fixes  ex  aequo  et  bono  at  7,000  dollars ; 

Whereas  the  Venezuelan  law  fixes  the  legal  interest  at  3%  and 
as,  under  these  conditions,  the  tribunal,  though  aware  of  the  in- 
sufficiency of  this  percentage,  can  not  allow  more; 

For  these  reasons: 

The  tribunal  declares  void  the  award  of  umpire  Barge  dated 
February  22nd,  1904,  on  the  four  following  points: 

1°,  as  regards  the  19,200  dollars; 

2°,  as  regards  the  1,053  dollars; 

3°,  as  regards  the  25,845.20  dollars; 

4°,  as  regards  the  769,22  dollars  deducted  from  the  claim 

for  28,461.53  dollars  for  the  retention  and  hire  of  the  Masparro  and 
Socorro; 

And  deciding,  in  consequence  of  the  nullity  thus  recognized  and 
by  reason  of  the  elements  submitted  to  its  appreciation : 

Declares  these  claims  founded  and  allows  to  the  United  States 
of  America,  besides  the  sums  allowed  by  the  award  of  the  umpire  of 
February  22nd,  1904,  the  sums  of : 

1°,  19,200  dollars;  3°,  25,845.20  dollars; 

2\  1,053  dollars:  4°,  769.22  dollars; 

the  whole  with  interest  at  3 per  cent  from  the  date  of  the  claim 
(June  16th,  1903),  the  whole  to  be  paid  within  two  months  after  the 
date  of  the  present  award; 

Allows  besides  for  the  indemnification  of  counsel  fees  and  ex- 
penses of  litigation  7,000  dollars; 

Rejects  the  claim  for  the  surplus,  the  award  of  umpire  Barge  of 
February  22nd,  1904,  preserving,  save  for  the  above  points,  its  full 
and  entire  effect. 

Done  at  The  Hague  in  the  Permanent  Court  of  Arbitration  in 
triplicate  original,  October  25th,  1910. 

The  President : Lammasch 

The  Secretary  General:  Michiels  van  Verduynen 


THE  ORINOCO  STEAMSHIP  COMPANY  CASE 


235 


AGREEMENT  FOR  ARBITRATION 

Protocol  of  an  agreement  between  the  United  States  of  America  and 
the  United  States  of  Venezuela  for  the  decision  and  adjustment 
of  certain  claims. — Signed  at  Caracas,  February  ij,  ipop.^ 

William  I.  Buchanan,  high  commissioner,  representing  the  Presi- 
dent of  the  United  States  of  America,  and  Doctor  Francisco  Gonzalez 
Guinan,  Minister  for  Foreign  Affairs  of  the  United  States  of  Vene- 
zuela, duly  authorized  by  General  Juan  Vicente  Gomez,  Vice-Presi- 
dent of  the  United  States  of  Venezuela,  in  charge  of  the  Presidency 
of  the  Republic,  having  exhibited  to  each  other  and  found  in  due 
form  their  respective  powers,  and  animated  by  the  spirit  of  sincere 
friendship  that  has  always  existed  and  should  exist  between  the  two 
nations  they  represent,  having  conferred  during  repeated  and  lengthy 
conferences  concerning  the  manner  of  amicably  and  equitably  adjust- 
ing the  differences  existing  between  their  respective  Governments 
with  regard  to  the  claims  pending  between  them  since  neither  the 
United  States  of  America  nor  the  United  States  of  Venezuela  aspires 
to  anything  other  than  sustaining  that  to  which  in  justice  and  equity 
it  is  entitled ; and  as  a result  of  these  conferences  have  recognized  the 
great  importance  of  arbitration  as  a means  toward  maintaining  the 
good  understanding  which  should  exist  and  increase  between  their 
respective  nations,  and  to  the  end  of  avoiding  hereafter,  so  far  as 
possible,  differences  between  them,  they  believe  it  is  from  every  point 
of  view  desirable  that  a treaty  of  arbitration  shall  be  adjusted  between 
their  respective  Governments. 

With  respect  to  the  claims  that  have  been  the  subject  of  their  long 
and  friendly  conferences,  William  I.  Buchanan  and  Doctor  Francisco 
Gonzalez  Guinan  have  found  that  the  opinions  and  views  concerning 
them  sustained  by  their  respective  Governments  have  been,  and  are, 
so  diametrically  opposed  and  so  different  that  they  have  found  it  diffi- 
cult to  adjust  them  by  common  accord ; wherefore  it  is  necessary  to 
resort  to  the  conciliatory  means  of  arbitration,  a measure  to  which  the 
two  nations  they  represent  are  mutually  bound  by  their  signatures  to 
the  treaties  of  the  Second  Peace  Conference  at  The  Hague  in  1907, 
and  one  which  is  recognized  by  the  entire  civilized  world  as  the  only 
satisfactory  means  of  terminating  international  disputes. 

Being  so  convinced,  and  firm  in  their  resolution  not  to  permit,  for 
any  reason  whatever,  the  cordiality  that  has  always  existed  between 


^Official  report,  p.  1.  For  the  Spanish  text,  see  Appendix,  p 508 


236 


THE  HAGUE  COURT  REPORTS 


their  respective  countries  to  be  disturbed,  the  said  William  I.  Buchanan 
and  Doctor  Francisco  Gonzalez  Guinan,  thereunto  fully  authorized, 
have  adjusted,  agreed  to  and  signed  the  present  protocol  for  the  set- 
tlement of  the  said  claims  against  the  United  States  of  Venezuela, 
which  are  as  follows : 

1.  The  claim  of  the  United  States  of  America  on  behalf  of  the 
Orinoco  Steamship  Company; 

[Paragraphs  Nos.  2 and  3 are  omitted  as  they  do  not  refer  to  the 
case  of  the  Orinoco  Steamship  Company.] 

Article  1 

With  respect  to  the  first  of  these  claims,  that  of  the  Orinoco  Steam- 
ship Company,  the  United  States  of  Venezuela  has  upheld  the  immu- 
tability of  the  arbitral  decision  of  umpire  Barge,  rendered  in  this  case, 
alleging  that  said  decision  does  not  suffer  from  any  of  the  causes 
which  by  universal  jurisprudence  give  rise  to  its  nullity,  but  rather 
that  it  is  of  an  unappealable  character,  since  the  compromis  of  arbitra- 
tion can  not  be  considered  as  void,  nor  has  there  been  an  excessive 
exercise  of  jurisdiction,  nor  can  the  corruption  of  the  judges  be  al- 
leged, nor  an  essential  error  in  the  judgment;  while  on  the  other 
hand,  the  United  States  of  America,  citing  practical  cases,  among 
them  the  case  of  the  revision,  with  the  consent  of  the  United  States 
of  America,  of  the  arbitral  awards  rendered  by  the  American- Vene- 
zuelan mixed  commission  created  by  the  Convention  of  April  25, 
1866,  and  basing  itself  on  the  circumstances  of  the  case,  considering 
the  principles  of  international  law  and  of  universal  jurisprudence,  has 
upheld  not  only  the  admissibility  but  the  necessity  of  the  revision  of 
said  award ; in  consequence  of  this  situation,  William  I.  Buchanan 
and  Doctor  Francisco  Gonzalez  Guinan,  in  the  spirit  that  has  marked 
their  conferences,  have  agreed  to  submit  this  case  to  the  elevated 
criterion  of  the  arbitral  tribunal  created  by  this  protocol,  in  the  fol- 
lowing form : 

The  arbitral  tribunal  shall  first  decide  whether  the  decision  of  um- 
pire Barge,  in  this  case,  in  view  of  all  the  circumstances  and  under 
the  principles  of  international  law,  is  not  void,  and  whether  it  must 
be  considered  so  conclusive  as  to  preclude  a reexamination  of  the  case 
on  its  merits.  If  the  arbitral  tribunal  decides  that  said  decision  must 
be  considered  final,  the  case  will  be  considered  by  the  United  States 
of  America  as  closed ; but  on  the  other  hand,  if  the  arbitral  tribunal 
decides  that  said  decision  of  umpire  Barge  should  not  be  considered 


THE  ORINOCO  STEAMSHIP  COMPANY  CASE 


237 


as  final,  said  arbitral  tribunal  shall  then  hear,  examine  and  determine 
the  case  and  render  its  decision  on  the  merits. 

[Articles  2 and  3 are  omitted,  as  they  do  not  refer  to  the  case  of  the 
Orinoco  Steamship  Company.] 

Article  4 

The  United  States  of  America  and  the  United  States  of  Venezuela 
having,  at  the  Second  Peace  Conference  held  at  The  Hague  in  1907, 
accepted  and  recognized  the  Permanent  Court  of  The  Hague,  it  is 
agreed  that  the  cases  mentioned  in  Articles  1,  2 and  3 of  this  protocol, 
that  is  to  say,  the  case  of  the  Orinoco  Steamship  Company,  that  of  the 
Orinoco  Corporation  and  of  its  predecessors  in  interest  and  that  of 
the  United  States  and  Venezuela  Company,  shall  be  submitted  to  the 
jurisdiction  of  an  arbitral  tribunal  composed  of  three  arbitrators  chosen 
from  the  above-mentioned  Permanent  Court  of  The  Hague. 

No  member  of  said  Court  who  is  a citizen  of  the  United  States  of 
America  or  of  the  United  States  of  Venezuela  shall  form  part  of  said 
arbitral  tribunal,  and  no  member  of  said  Court  can  appear  as  counsel 
for  either  nation  before  said  tribunal. 

This  arbitral  tribunal  shall  sit  at  The  Hague. 

Article  5 

The  said  arbitral  tribunal  shall,  in  each  case  submitted  to  it,  deter- 
mine, decide  and  make  its  award,  in  accordance  with  justice  and 
equity.  Its  decisions  in  each  case  shall  be  accepted  and  upheld  by  the 
United  States  of  America  and  the  United  States  of  Venezuela  as  final 
and  conclusive. 


Article  6 

In  the  presentation  of  the  cases  to  the  arbitral  tribunal  both  parties 
may  use  the  French,  English  or  Spanish  language. 

Article  7 

Within  eight  months  from  the  date  of  this  protocol,  each  of  the 
parties  shall  present  to  the  other  and  to  each  of  the  members  of  the 
arbitral  tribunal,  two  printed  copies  of  its  case,  with  the  documents 
and  evidence  on  which  it  relies,  together  with  the  testimony  of  its 
respective  witnesses. 


238 


THE  HAGUE  COURT  REPORTS 


Within  an  additional  term  of  four  months,  either  of  the  parties 
may  in  like  manner  present  a counter-case  with  documents  and  addi- 
ftional  evidence  and  depositions,  in  answer  to  the  case,  documents, 
evidence  and  depositions  of  the  other  party. 

Within  sixty  days  from  the  expiration  of  the  time  designated  for 
the  filing  of  the  counter-cases,  each  Government  may,  through  its 
representative,  make  its  arguments  before  the  arbitral  tribunal,  either 
orally  or  in  writing,  and  each  shall  deliver  to  the  other  copies  of  any 
arguments  thus  made  in  writing,  and  each  party  shall  have  a right 
to  reply  in  writing,  provided  such  reply  be  submitted  within  the  sixty 
days  last  named. 

Article  8 

All  public  records  and  documents  under  the  control  or  at  the  dis- 
posal of  either  Government  or  in  its  possession,  relating  to  the  matters 
in  litigation  shall  be  accessible  to  the  other,  and,  upon  request,  certi- 
fied copies  of  them  shall  be  furnished.  The  documents  which  each 
party  produces  in  evidence  shall  be  authenticated  by  the  resp>ective 
Minister  for  Foreign  Affairs. 

Article  9 

All  f>ecuniary  awards  that  the  arbitral  tribunal  may  make  in  said 
cases  shall  be  in  gold  coin  of  the  United  States  of  America,  or  in  its 
equivalent  in  Venezuelan  money,  and  the  arbitral  tribunal  shall  fix 
the  time  of  payment,  after  consultation  with  the  representatives  of  the 
two  countries. 

Article  10 

It  is  agreed  that  within  six  months  from  the  date  of  this  protocol, 
the  Government  of  the  United  States  of  America  and  that  of  the 
United  States  of  Venezuela  shall  communicate  to  each  other,  and  to 
the  Bureau  of  the  Permanent  Court  at  The  Hague,  the  name  of  the 
arbitrator  they  select  from  among  the  members  of  the  Permanent 
Court  of  Arbitration. 

Within  sixty  days  thereafter  the  arbitrators  shall  meet  at  The 
Hague  and  proceed  to  the  choice  of  the  third  arbitrator  in  accordance 
with  the  provisions  of  Article  45  of  The  Hague  Convention  for  the 
peaceful  settlement  of  international  disputes,  referred  to  herein. 

Within  the  same  time  each  of  the  two  Governments  shall  deposit 
with  the  said  Bureau  the  sum  of  fifteen  thousand  francs  on  account 
of  the  expenses  of  the  arbitration  provided  for  herein,  and  from  time 


THE  ORINOCO  STEAMSHIP  COMPANY  CASE 


239 


to  time  thereafter  they  shall  in  like  manner  deposit  such  further  sums 
as  may  be  necessary  to  defray  said,  expenses. 

The  arbitral  tribunal  shall  meet  at  The  Hague  twelve  months  from 
the  date  of  this  protocol  to  begin  its  deliberations  and  to  hear  the 
arguments  submitted  to  it.  Within  sixty  days  after  the  hearings  are 
closed  its  decisions  shall  be  rendered. 

Article  11 

Except  as  provided  in  this  protocol  the  arbitral  procedure  shall  con- 
form to  the  provisions  of  the  Convention  for  the  peaceful  settlement 
of  international  disputes,  signed  at  The  Hague  on  October  18,  1907, 
to  which  both  parties  are  signatory,  and  especially  to  the  provisions 
of  Chapter  HI  thereof. 

Article  12 

It  is  hereby  understood  and  agreed  that  nothing  herein  contained 
shall  preclude  the  United  States  of  Venezuela,  during  the  period  of 
five  months  from  the  date  of  this  protocol,  from  reaching  an  amicable 
adjustment  with  either  or  both  of  the  claimant  companies  referred  to 
in  Articles  2 and  3 herein,^  provided  that  in  each  case  wherein  a settle- 
ment may  be  reached,  the  respective  company  shall  first  have  obtained 
the  consent  of  the  Government  of  the  United  States  of  America. 

The  undersigned,  William  I.  Buchanan  and  Francisco  Gonzalez 
Guinan,  in  the  capacity  which  each  holds,  thus  consider  their  confer- 
ences with  respect  to  the  differences  between  the  United  States  of 
America  and  the  United  States  of  Venezuela  as  closed,  and  sign  two 
copies  of  this  protocol  of  the  same  tenor  and  to  one  effect,  in  both 
the  English  and  Spanish  languages,  at  Caracas,  on  the  thirteenth  day 
of  February  one  thousand  nine  hundred  and  nine. 

William  I.  Buchanan  [seal] 

F.  Gonzalez  Guinan  [seal] 


^Articles  2 and  3 not  printed,  as  they  have  no  bearing  on  the  Orinoco  Steam- 
ship Company  Case. 


240 


THE  HAGUE  COURT  REPORTS 


ADDITIONAL  DOCUMENTS 

Opinion  of  Mr.  Bainbridge,  in  the  original  Orinoco  Steamship  Com- 
pany Case  before  the  United  States  and  Venezuelan  Claims  Com- 
mission of  ipoj.^ 

Inasmuch  as,  by  reason  of  a disagreement  between  the  commission- 
ers, this  claim  is  to  be  submitted  to  the  umpire,  to  whom  in  such  case 
the  protocol  exclusively  confides  its  decision,  the  commissioner  on  the 
part  of  the  United  States  limits  himself  to  the  consideration  of  certain 
questions  which  have  been  raised  by  the  respondent  Government, 
affecting  the  competency  of  the  commission  to  determine  this  very 
important  claim. 

It  may  be  presumed  that  in  framing  the  convention  establishing  the 
commission,  the  high  contracting  parties  had  clearly  in  view  the  scope 
of  the  jurisdiction  to  be  conferred  upon  it  and  deliberately  chose,  in 
order  to  define  that  scope,  the  words  most  appropriate  to  that  end. 

Article  1 of  the  protocol  defines  the  jurisdiction  of  the  commission 
in  the  following  terms ; 

All  claims  owned  by  citizens  of  the  United  States  of  America 
lagainst  the  Republic  of  Venezuela  which  have  not  been  settled 
by  diplomatic  agreement  or  by  arbitration  between  the  two  Gov- 
ernments, and  which  shall  have  been  presented  to  the  commission 
hereinafter  named  by  the  Department  of  State  of  the  United 
States  or  its  legation  at  Caracas,  shall  be  examined  and  decided 
by  a mixed  commission,  which  shall  sit  at  Caracas,  and  which 
shall  consist  of  two  members,  one  of  whom  is  to  be  appointed 
by  the  President  of  the  United  States  and  the  other  by  the 
\ President  of  Venezuela.  It  is  agreed  that  an  umpire  may  be 
named  by  the  Queen  of  the  Netherlands.* 

The  protocol  was  signed  at  Washington  on  behalf  of  the  respective 
Governments  on  the  17th  of  February,  1903.  In  view  of  the  explicit 
language  of  the  article  quoted  above,  it  would  seem  too  clear  for  argu- 
ment that  the  contracting  parties  contemplated  and  agreed  to  the 
submission  to  this  tribunal  of  all  claims,  not  theretofore  settled  by 
diplomatic  agreement  or  by  arbitration,  which  were  on  that  date  owned 
by  citizens  of  the  United  States  against  the  Republic  of  Venezuela. 

The  Orinoco  Steamship  Company  is  a corporation  organized  and 
existing  under  and  by  virtue  of  the  laws  of  the  State  of  New  Jersey. 
It  is  the  successor  in  interest,  by  deed  of  assignment  dated  April  1st, 

'^United  States  and  Venezuela  Arbitration  at  The  Hague,  Appendix  to  the  Case 
of  the  United  States,  vol.  i,  p.  654. 

^Ante,  p.  74. 


THE  ORINOCO  STEAMSHIP  COMPANY  CASE 


241 


1902,  of  the  Orinoco  Shipping  and  Trading  Company,  Limited,  a 
Company  limited  by  shares,  organized  under  the  English  companies 
acts  of  1862  to  1893,  and  duly  registered  in  the  office  of  the  register  of 
joint  stock  companies,  London,  England,  on  the  14th  day  of  July, 
1898.  Among  other  of  the  assets  transferred  by  the  said  deed  of 
assignment  were  “all  franchises,  concessions,  grants  made  in  favor  of 
the  Orinoco  Shipping  and  Trading  Company,  Limited,  by  the  Repub- 
lic of  Venezuela,  particularly  the  concession  granted  by  the  Govern- 
ment of  Venezuela  for  navigation  by  steamer  from  Ciudad  Bolivar  to 
Maracaibo,  made  originally  by  the  national  Executive  with  Manuel 
Antonio  Sanchez,  and  approved  by  Congress  on  the  8th  day  of  June, 
1894,”  and  “all  claims  and  demands  existing  in  favor  of  the  Orinoco 
Shipping  and  Trading  Company,  Limited,  against  the  Republic  of 
Venezuela.”  The  claims  and  demands  referred  to  constitute  in  the 
main  the  claim  here  presented  on  behalf  of  the  Orinoco  Steamship 
Company. 

The  learned  counsel  for  Venezuela  contends  that: 

At  the  time  when  the  acts  occurred  which  are  the  basis  of  the 
claim,  the  Orinoco  Steamship  Company  did  not  exist  and  could  not 
have  had  any  rights  before  coming  into  existence,  and  in  order 
that  it  might  be  protected  to-day  by  the  United  States  of  America 
it  would  be  necessary,  in  accordance  with  the  stipulations  of  the 
protocol,  that  the  damages,  in  the  event  of  being  a fact,  should 
have  been  suffered  by  an  American  citizen,  not  that  they  should 
have  been  suffered  by  a third  party  of  different  nationality  and 
later  transferred  to  an  American  citizen;  such  a proceeding  is 
completely  opposed  to  equity  and  to  the  spirit  of  the  protocol. 

In  the  case  of  Abbiatti  vs.  Venezuela  before  the  United  States  and 
Venezuelan  Claims  Commission  of  1890,  the  question  arose  whether  the 
claimant,  not  having  been  a citizen  of  the  United  States  at  the  time  of 
the  occurrences  complained  of,  had  a standing  in  court ; and  it  was  held 
that  under  the  treaty  claimants  must  have  been  citizens  of  the  United 
States  “at  least  when  the  claims  arose.”  This  was  declared  to  be  the 
“settled  doctrine.”  Mr.  Commissioner  Little  in  his  opinion  says: 

As  observed  elsewhere,  the  infliction  of  a wrong  upon  a State’s 
own  citizen  is  an  injury  to  it,  and  in  securing  redress  it  acts  in 
discharge  of  its  own  obligations  and,  in  a sense,  in  its  own  inter- 
est. This  is  the  key — subject,  of  course,  to  treaty  terms — for 
the  determination  of  such  jurisdictional  questions:  Was  the  plain- 
tiff State  injured?  It  was  not,  when  the  person  wronged  was 
at  the  time  a citizen  of  another  State.  Naturalization  transfers 
allegiance,  but  not  existing  State  obligations. 


242 


THE  HAGUE  COURT  REPORTS 


It  is  to  be  observed  that  in  attempting  to  lay  down  a rule  applicable 
to  the  case,  the  commission  is  careful  to  make  the  significant  reserva- 
tion that  the  rule  enunciated  is  “subject  of  course  to  treaty  terms.” 
It  does  not  deny  the  comp>etency  of  the  high  contracting  parties  to 
provide  for  the  exercise  of  a wider  jurisdiction  by  appropriate  terms 
in  a treaty.  And  that  is  precisely  what  has  been  done  here.  The 
unequivocal  terms  employed  in  the  present  protocol  were  manifestly 
chosen  to  confer  jurisdiction  of  all  claims  owned  (on  February  17, 
1903)  by  the  citizens  of  the  United  States  against  the  Republic  of  Vene- 
zuela, presented  to  the  commission  by  the  Department  of  State  of  the 
United  States  or  its  legation  at  Caracas.  Under  these  treaty  terms, 
the  key  to  such  a jurisdictional  question  as  that  under  consideration 
is  the  ownership  of  the  claim  by  a citizen  of  the  United  States  of 
America  on  the  date  the  protocol  was  signed. 

The  present  claim,  together  with  other  assets  of  the  Orinoco  Ship- 
ping and  Trading  Company,  Limited,  was  acquired  by  valid  deed  of 
assignment  by  the  Orinoco  Steamship  Company,  a citizen  of  the  United 
States,  on  April  1st,  1902,  long  prior  to  the  signing  of  the  protocol,  and 
is  therefore  clearly  within  the  jurisdiction  of  this  commission. 

Pursuant  to  the  requirement  of  the  convention,  the  commissioners 
and  the  umpire,  before  assuming  the  functions  of  their  office  took  a 
solemn  oath  carefully  to  examine  and  impartially  decide  according  to 
justice  and  the  provisions  of  the  convention  all  claims  submitted  to 
them.  Undoubtedly  the  first  question  to  be  determined  in  relation 
to  each  claim  presented  is  whether  or  not  it  comes  within  the  terms  of 
the  treaty.  If  it  does,  the  jurisdiction  of  the  commission  attaches. 

Jurisdiction  is  the  power  to  hear  and  determine  a cause;  it  is 
coram  judice  whenever  a case  is  presented  which  brings  this 
power  into  action.  United  States  vs.  Arredondo,  6 Pet.,  691. 

Thenceforward  the  commission  is  directed  by  the  protocol  and  is 
bound  by  its  oath  carefully  to  examine  and  impartially  to  decide  in 
conformity  with  the  principles  of  justice  and  the  rules  of  equity  all 
questions  arising  in  the  claim,  and  its  decision  is  declared  to  be  final 
and  conclusive. 

The  jurisdiction  exercised  by  this  commission  is  derived  from  a 
solemn  compact  between  independent  nations.  It  supersedes  all  other 
jurisdictions  in  respect  of  all  matters  properly  within  its  scope.  It 
can  not  be  limited  or  defeated  by  any  prior  agreement  of  the  parties 
litigant  to  refer  their  contentions  to  the  local  tribunals.  Local  juris- 


THE  ORINOCO  STEAMSHIP  COMPANY  CASE 


243 


diction  is  displaced  by  international  arbitration;  private  agreement  is 
superseded  by  public  law  or  treaty. 

As  to  every  claim  fairly  within  the  treaty  terms,  therefore,  the  func- 
tions of  this  commission,  under  its  fundamental  law  and  under  its 
oath,  are  not  fulfilled  until  to  its  careful  examination  there  is  added  an 
impartial  decision  upon  its  merits.  It  can  not  deny  the  benefit  of  its 
jurisdiction  to  any  claimant  in  whose  behalf  the  high  contracting  par- 
ties have  provided  this  international  tribunal.  Jurisdiction  assumed, 
some  decision,  some  final  and  conclusive  action  in  the  exercise  of  its 
judicial  power  is  incumbent  upon  the  commission.  Mr.  Commissioner 
Gore  in  the  case  of  the  Betsy,  before  the  United  States  and  British 
Commission  of  1794,  well  said : 

To  refrain  from  acting  when  our  duty  calls  us  to  act,  is  as 
wrong  as  to  act  where  we  have  no  authority.  We  owe  it  to  the 
respective  Governments  to  refuse  a decision  in  cases  not  submitted 
to  us;  we  are  under  equal  obligation  to  decide  on  those  cases 
that  are  within  the  submission.  3 Moore,  Int.  Arb.,  2290. 

Finally,  the  protocol  imposes  upon  this  tribunal  the  duty  of  deciding 
all  claims  “upon  a basis  of  absolute  equity,  without  regard  to  objec- 
tions of  a technical  nature,  or  of  the  provisions  of  local  legislation.” 
Clearly  the  high  contracting  parties  had  in  view  the  substance  and  not 
the  shadow  of  justice.  They  sought  to  make  the  remedies  to  be 
afforded  by  the  commission  dependent  not  upon  the  niceties  of  legal 
refinement,  but  upon  the  very  right  of  the  case.  The  vital  question  in 
this,  as  in  every  other  claim  before  this  tribunal,  is  whether  and  to 
what  extent  citizens  of  the  United  States  of  America  have  suffered  loss 
or  injury;  and  whether  and  to  what  extent  the  Government  of  Vene- 
zuela is  responsible  therefor. 


Opinion  of  Mr.  Grisanti,  in  the  original  Orinoco  Steamship  Company 
Case  before  the  United  States  and  Venezuelan  Claims  Commission 
of  ipo3.^ 

The  Orinoco  Steamship  Company,  Limited,  demands  payment  of 
the  Government  of  Venezuela  for  four  claims,  as  follows : 

'^United  States  and  Venezuela  Arbitration  at  the  Hague,  Appendix  to  the  Case 
of  the  United  States,  vol.  i,  p.  670. 

Attention  is  called  to  the  fact  that  the  amounts  claimed  (U.  S.  money)  as 
here  given  differ  from  the  amounts  given  in  the  arbitral  award.  This  discrepancy 
is  probably  due  to  errors  in  calculation,  the  amounts  in  bolivars  being  identical 
in  all  cases. 


244 


THE  HAGUE  COURT  REPORTS 


1st.  For  $1,209,701.05  which  sum  the  claimant  company  reckons 
as  due  for  damages  and  losses  caused  by  the  Executive  decree  of  Octo- 
ber 5,  1900,  said  decree  having,  as  the  company  affirms,  annulled  its 
contract-concession  celebrated  on  May  26,  1894.  The  company  deems 
as  a reasonable  value  of  the  contract  $82,432.78  per  annum. 

2nd.  For  $147,638.79  at  which  the  claimant  company  estimates 
the  damages  and  losses  sustained  during  the  last  revolution,  including 
services  rendered  to  the  Government  of  the  Republic. 

3rd.  For  100,000  bolivars,  or  $19,219.19  overdue  on  account  of  the 
transaction  celebrated  on  May  10,  1900. 

4th.  For  $25,000  for  counsel  fees  and  expenses  incurred  in  car- 
rying out  said  claims. 

The  forementioned  claims  are  held  by  the  Orinoco  Steamship  Com- 
pany, a corporation  of  American  citizenship,  organized  and  existing 
under  and  pursuant  to  the  provision  of  an  act  of  the  legislature  of  the 
State  of  New  Jersey  as  assignee  and  successor  of  the  Orinoco  Shipping 
and  Trading  Company  Limited,  of  English  nationality,  organized  in 
conformity  with  the  respective  laws  of  Great  Britain. 

And  in  fact,  it  has  always  been  the  Orinoco  Shipping  and  Trading 
Company  Limited  which  has  dealt  and  contracted  with  the  Govern- 
ment of  Venezuela,  as  evidenced  by  the  documents  and  papers  relating 
thereto.  In  case  the  forementioned  claims  be  considered  just  and 
correct,  the  rights  from  which  they  arise  were  originally  invested  in 
the  juridical  character  {persona  juridica)  of  the  Orinoco  Shipping  and 
Trading  Company  Limited;  and  its  claims  are  for  the  first  time 
presented  to  this  mixed  commission  by  and  on  behalf  of  the  Orinoco 
Steamship  Company,  as  its  assignee  and  successor,  in  virtue  of  an 
assignment  and  transfer  which  appears  in  Exhibit  No.  3 annexed  to 
the  memorial  in  pages  51  to  59  of  the  same,  and  in  the  reference  to 
which  assignment  we  shall  presently  make  some  remarks. 

Before  stating  an  opinion  in  regard  to  the  gp-ounds  of  said  claims, 
the  Venezuelan  commissioner  holds  that  this  commission  has  no  juris- 
Idiction  to  entertain  them.  Said  objection  was  made  by  the  honorable 
agent  for  Venezuela  prior  to  discussing  the  claims  in  themselves,  and 
as  the  Venezuelan  commissioner  considers  such  objection  perfectly  well 
founded  he  adheres  to  it  and  will  furthermore  state  the  powerful  rea- 
sons on  which  he  considers  said  objection  to  be  founded. 

It  is  a principle  of  international  law,  universally  admitted  and  prac- 
ticed, that  for  collecting  a claim  protection  can  only  be  tendered  by  the 
Government  of  the  nation  belonging  to  the  claimant  who  originally 
acquired  the  right  to  claim,  or  in  other  words  that  an  international 


THE  ORINOCO  STEAMSHIP  COMPANY  CASE 


245 


claim  must  be  held  by  the  person  who  has  retained  his  own  citizenship 
since  said  claim  arose  up  to  the  date  of  its  final  settlement,  and  that 
only  the  government  of  such  person’s  country  is  entitled  to  demand 
payment  for  the  same,  acting  on  behalf  of  the  claimant.  Furthermore, 
the  original  owner  of  the  claims  we  are  analyzing  was  the  Orinoco 
Shipping  and  Trading  Company  Limited — an  English  company;  and 
that  which  demands  their  payment  is  the  Orinoco  Steamship  Company 
Limited — an  American  company;  and  as  claims  do  not  change  na- 
tionality for  the  mere  fact  of  their  future  owners  having  a different 
^ citizenship,  it  is  as  clear  as  daylight  that  this  Venezuelan-American 
* Mixed  Commission  has  no  jurisdiction  for  entertaining  said  claims. 
The  doctrine  which  I hold  has  also  been  sustained  by  important  de- 
cisions awarded  by  international  arbitrators. 

Albino  Abbiatti  applied  to  the  Venezuelan-American  Mixed  Com- 
mission of  1890,  claiming  to  be  paid  several  amounts  which  in  his  opin- 
ion the  Government  of  Venezuela  owed  him.  The  acts  alleged  as  the 
grounds  for  the  claims  took  place  in  1863  and  1864,  at  which  time 
Abbiatti  was  an  Italian  subject,  and  it  appears  that  subsequently,  in 
1866,  he  became  a United  States  citizen.  The  commission  disallowed 
the  claim,  declaring  its  want  of  jurisdiction  to  entertain  said  claim  for 
the  following  reasons : 

Has  the  claimant  then,  not  having  been  a citizen  of  the  United 
States  at  the  time  of  the  occurrences  complained  of,  a standing 
here?  The  question  is  a jurisdictional  one.  The  treaty  provides: 
“All  claims  on  the  part  of  corporations,  companies  or  individuals, 
citizens  of  the  United  States,  upon  the  Government  of  Venezuela 
. . . shall  be  submitted  to  a new  commission,  etc.”  Citizens 

when?  In  claims  like  this  they  must  have  been  citizens  at  least 
when  the  claims  arose.  Such  is  the  settled  doctrine.  The  plaintiff 
State  is  not  a claim  agent.  As  observed  elsewhere,  the  infliction 
of  a wrong  upon  a state’s  own  citizen  is  an  injury  to  it,  and  in 
securing  redress  it  acts  in  discharge  of  its  own  obligation  and, 
in  a sense,  in  its  own  interest.  This  is  the  key — subject,  of  course, 
to  treaty  terms — for  the  determination  of  such  jurisdictional  ques- 
tions: Was  the  plaintiff  State  injured?  It  was  not,  where  the 
person  wronged  was  at  the  time  a citizen  of  another  state, 
although  afterwards  becoming  its  own  citizen.  The  injury  there 
was  to  the  other  state.  Naturalization  transfers  allegiance,  but 
not  existing  state  obligations.  Abbiatti  could  not  impose  upon  the 
United  States,  by  becoming  its  citizen,  Italy’s  existing  duty  toward 
him.  This  is  not  a case  of  uncompleted  wrong  at  the  time  of 
citizenship,  or  of  one  continuous  in  its  nature. 

The  commission  has  no  jurisdiction  of  the  claim  for  want  of 
required  citizenship,  and  it  is  therefore  dismissed.  {United  States 


246 


THE  HAGUE  COURT  REPORTS 


and  Venezuelan  Claims  Committee.  Claim  of  Albina  Abbiatti 
vs.  The  Republic  of  Venezuela,  No.  34,  p.  84.) 

In  the  case  mentioned  Abbiatti  had  always  owned  the  claim ; but  as 
he  was  an  Italian  subject  when  the  damage  occurred,  the  commission 
declared  it  had  no  jurisdiction  to  entertain  said  claim,  notwithstand- 
ing that  at  the  time  of  applying  to  the  commission  he  had  become  a 
citizen  of  the  United  States. 

Article  1 of  the  protocol  signed  at  Washington  on  February  17  of 
the  current  year  says,  textually,  as  follows : 

All  claims  owned  by  citizens  of  the  United  States  of  America 
agaiiut  the  Republic  of  Venezuela  ivhich  have  not  been  settled  by 
diplomatic  agreement  or  by  arbitration  between  the  two  Govern- 
ments, and  which  shall  have  been  presented  to  the  commission 
hereinafter  tmmed  by  the  Department  of  State  of  the  United  States 
or  its  legation  at  Caracas,  shall  be  examined  and  decided  by  a 
mixed  commission,  etc. 

Owned  when?  we  beg  to  ask,  in  our  turn,  as  in  the  above-inserted 
decision.  Owned  ab  initio,  that  is  to  say,  owned  since  the  moment 
when  the  right  arose  up  to  the  moment  of  applying  with  it  to  this 
mixed  commission.  The  verb  “to  own”  means  to  possess,  and  as 
used  in  the  protocol  signifies  “being  the  original  proprietor” ; therefore 
it  will  not  suffice  that  the  claim  be  possessed  by  a citizen  of  the  United 
States  at  the  time  the  protocol  was  signed ; the  jurisdiction  of  this 
commission  requires  that  the  right  should  have  risen  in  the  citizen  of 
the  United  States  and  that  said  citizen  shall  never  have  failed  to  be 
the  owner  of  such  a right.  Thus  and  thus  only  could  the  Govern- 
ment of  the  United  States  protect  the  claimant  company ; thus,  and  on 
such  conditions  alone,  would  this  commission  have  jurisdiction  to 
entertain  said  claims. 

If  the  clause,  “All  claims  owned  by  citizens  of  the  United  States 
of  America,”  etc.,  were  considered  doubtful,  and  consequently  should 
require  interpretation,  it  ought  undoubtedly  to  be  given  in  accordance 
with  the  forementioned  universal  principle — the  basis  of  this  state- 
ment— and  not  in  opposition  to  it.  Derogation  of  a principle  of  law 
in  a judicial  document  has  to  be  most  clearly  expressed;  otherwise,  the 
principle  prevails,  and  the  protocol  must  be  interpreted  accordingly. 

While  in  some  of  the  earlier  cases  the  decisions  as  to  what  con- 
stituted citizenship  within  the  meaning  of  the  convention  were 
exceptional,  it  was  uniformly  held  that  such  citizenship  was  nec- 
essary when  the  claim  was  presented  as  well  as  when  it  arose. 


THE  ORINOCO  STEAMSHIP  COMPANY  CASE 


247 


Numerous  claims  were  dismissed  on  the  ground  that  the  claimant 
was  not  a citizen  when  the  claim  arose.  The  assignment  of  a claim 
to  an  American  citizen  was  held  not  to  give  the  commission  juris- 
diction. 

An  American  woman  who  was  married  in  July  1861  to  a 
British  subject  in  Mexico  was  held  not  to  be  competent  to  appear 
before  the  commission  as  a claimant  in  respect  of  damage  done 
by  the  Mexican  authorities  in  November  1861  to  the  estate  of 
her  former  husband,  though  her  second  husband  had  in  1866  be- 
come a citizen  of  the  United  States  by  naturalization.  On  the  other 
hand,  where  the  nationality  of  the  owner  of  a claim,  originally 
American  or  Mexican,  had  for  any  cause  changed,  it  was  held  that 
the  claim  could  not  be  entertained.  Thus,  where  the  ancestor, 
who  was  the  original  owner,  had  died,  it  was  held  that  the  heir 
could  not  appear  as  a claimant  unless  his  nationality  was  the  same 
as  that  of  his  ancestor.  The  person  who  had  the  “right  to  the 
award”  must,  it  was  further  held,  be  considered  as  the  “real  claim- 
ant” by  the  commission,  and,  whoever  he  might  be,  must  “prove 
himself  to  be  a citizen”  of  the  government  “by  which  the  claim 
was  presented.”  (Moore,  International  Arbitrations,  vol.  2,  p. 
1353.) 

In  the  memorial  (No.  4)  it  is  affirmed  that  99  per  cent  of  the  total 
capital  stock  of  the  Orinoco  Shipping  and  Trading  Company,  Limited, 
was  owned  by  citizens  of  the  United  States  of  America,  but  this  cir- 
cumstance, even  if  it  were  proved,  does  not  deprive  said  company  of 
its  British  nationality,  on  account  of  its  being  organized,  according  to 
the  referred-to  memorial,  under  the  English  companies  acts  of  1862  to 
1893  and  duly  registered  in  the  office  of  the  register  of  joint  stock 
companies,  London,  on  the  14th  of  July,  1898.  The  fact  is  that  lim- 
ited companies  owe  their  existence  to  the  law  in  conformity  to  which 
they  have  been  organized,  and  consequently  their  nationality  can  be 
no  other  than  that  of  said  law.  The  conversion  of  said  company, 
which  is  English,  into  the  present  claimant  company,  which  is  North 
American,  can  have  no  retroactive  effect  in  giving  this  tribunal  juris- 
diction for  entertaining  claims  which  were  originally  owned  by  the 
first-mentioned  company,  as  that  would  be  to  overthrow  or  infringe 
fundamental  principles. 

Naturalisation  not  retroactive.  Without  discussing  here  the 
theory  about  the  retroactive  effect  of  naturalization  for  certain 
purposes,  I believe  it  can  be  safely  denied  in  the  odious  matter 
of  injuries  and  damages.  A government  may  resent  an  indignity 
or  injustice  done  to  one  of  its  subjects,  but  it  would  be  absurd 
to  open  an  asylum  to  all  who  have,  or  believe  they  have,  received 


248 


THE  HAGUE  COURT  REPORTS 


some  injury  or  damage  at  the  hands  of  any  existing  government, 
to  come  and  be  naturalized  for  the  effect  of  obtaining  redress  for 
all  their  grievances.  (Moore,  work  cited,  vol.  3,  p.  2483.) 

The  three  quotations  inserted  hold  and  sanction  the  principle  that, 
in  order  that  the  claimant  might  allege  his  rights  before  a mixed  claims 
commission  organized  by  the  government  of  his  country  and  that  of 
the  owing  nation,  it  is  necessary  that  the  claim  should  always  have  be- 
longed to  him  and  that  he  should  never  have  changed  his  nationality. 
And  this  principle  demands  that  this  commission  should  declare  its 
want  of  jurisdiction,  whether  the  two  companies  be  considered  as  dif- 
ferent juridical  characters  {personas  juridicas)  and  that  the  claimant 
is  a successor  of  the  other,  or  whether  they  be  considered  as  one  and  the 
same,  having  changed  nationality. 

I now  beg  to  refer  to  another  matter — 'to  the  analysis  of  the  judicial 
value  of  the  deed  of  assignment. 

In  the  first  number  of  the  exhibit  “The  Orinoco  Shipping  and  Trad- 
ing Company”  appears  selling  to  “The  Orinoco  Steamship  Company,” 
which  is  the  claimant,  the  nine  steamships  named,  respectively,  Boli- 
var, Manzanares,  Delta,  Apure,  Guanare,  Socorro,  Masparro,  Heroe, 
and  Morganito.  These  steamships  were  destined  for  coastal  service  or 
cabotaje,  some  to  navigate  the  rivers  of  Guanare,  Cojedes,  Portuguesa, 
and  Masparro  from  Ciudad  Bolivar  up  to  the  mouth  of  the  Uribante 
River  (Olachea  contract  of  June  27,  1891),  and  others  to  navigate 
between  said  Ciudad  Bolivar  and  Maracaibo,  and  to  call  at  the  ports 
of  La  Vela,  Puerto  Cabello,  La  Guaira,  Guanta,  Puerto  Sucre,  and 
Carupano  (Grell  contract,  June  8,  1894);  this  line  was  granted  the 
option  of  calling  at  the  ports  of  Curasao  and  Trinidad  while  the  Gov- 
ernment fixes  definitely  the  transshipment  ports  for  merchandise  from 
abroad,  and  while  they  are  making  the  necessary  installations.  (Ar- 
ticle 12.) 

However,  the  coastal  trade  can  only  be  carried  on  by  ships  of  Vene- 
zuelan nationality,  in  conformity  with  Article  1,  Law  XVIII,  of  the 
Financial  Code,  which  provides  that — 

Internal  maritime  trade  of  cabotaje  or  coastal  service  is  that 
which  is  carried  on  between  the  open  ports  of  Venezuela  and  other 
parts  of  the  continent,  as  well  as  between  the  banks  of  its  lakes 
and  rivers,  in  national  ships,  whether  laden  with  foreign  merchan- 
dise for  which  duties  have  been  paid,  or  with  native  goods  or  pro- 
ductions. (Cotncrcio  de  Cabotaje,  p.  87.) 


THE  ORINOCO  STEAMSHIP  COMPANY  CASE 


249 


And  if  we  further  add  that  the  steamers  were  obliged  to  navigate 
under  the  Venezuelan  flag  (Article  2 of  the  Grell  contract),  as  in  fact 
they  did,  the  result  is  that  said  steamers  are  Venezuelan  by  national- 
ization, wherefore  the  assignment  of  said  steamers  alleged  by  the 
Orinoco  Shipping  and  Trading  Company,  Limited,  to  the  claimant 
company  is  absolutely  void  and  of  no  value,  owing  to  the  fact  that  the 
stipulations  provided  by  the  Venezuelan  law  (here  inserted)  for  the 
validity  of  such  an  assignment  were  not  fulfilled. 


Law  XXXIII  (Financial  Code)  on  the  Nationalisation  of  Ships 

Article  1st.  The  following  alone  will  be  held  as  national  ships: 

1st.  ........ 

2nd.  ........ 

3rd.  ........ 

4th.  Those  nationalized  according  to  law. 

Article  6th.  ....... 

The  guaranty  given  for  the  proper  use  of  the  flag  must  be 
to  the  satisfaction  of  the  custom-house.  The  property  deed  must 
be  registered  at  the  office  of  the  place  where  the  purchase  takes 
place,  and  if  such  purchase  is  made  in  a foreign  country  a certi- 
ficate of  the  same,  signed  by  the  Venezuelan  consul  and  by  the 
harbor  master,  shall  have  to  be  sent,  drawn  on  duly  stamped  paper. 

Article  12th.  When  a ship,  or  part  thereof,  is  to  be  assigned, 
a new  patent  must  be  obtained  by  the  assignee,  after  having  pre- 
sented the  new  title  deeds  to  the  custom-house  and  receiving 
therefrom  the  former  patent,  stating  measurements  and  tonnage 
therein  contained,  in  order  to  obtain  said  patent. 

The  assignment  of  the  forementioned  steamer  is,  to  the  Government 
of  Venezuela,  void  and  of  no  value  or  effect  whatever. 

In  Exhibit  No.  2 “The  Orinoco  Shipping  and  Trading  Company 
Limited”  appears  as  assigning  several  immovable  properties  situated  in 
the  Territorio  Federal  Amazonas  of  the  Republic  of  Venezuela  to  the 
claimant  company,  and  the  title  deed  has  not  been  registered  at  the 
sub-register  office  of  said  Territory,  as  prescribed  by  the  Venezuelan 
Civil  Code  in  the  following  provisions ; 


Article  1883.  Registration  must  be  made  at  the  proper  office  of 
the  department,  district,  or  canton  where  the  immovable  property 
which  has  caused  the  deed  is  situated. 

Article  1888.  In  addition  to  those  deeds  which,  by  special  de- 
cree, are  subject  to  the  formalities  of  registration,  the  following 
must  be  registered : 


250 


THE  HAGUE  COURT  REPORTS 


1st.  All  acts  between  living  beings,  due  to  gratuitous,  onerous, 
or  assignment  title  deeds  of  immovable  or  other  property  or  rights 
susceptible  of  hypothecation. 

In  Exhibit  No.  3,  the  Orinoco  Shipping  and  Trading  Company 
Limited  appears  assigning  the  Olachea  contract  of  June  27,  1891,  and 
the  Grell  contract  of  June  8,  1894.  In  assigning  the  first  of  these  the 
approval  of  the  Venezuelan  Government  was  not  obtained,  either 
before  or  after,  thereby  infringing  the  following  provision : 

This  contract  may  be  transferred  wholly  or  in  part  to  any  other 
person  or  corporation  upon  previous  approval  of  the  National 
Government. 

In  assigning  the  second  the  stipulation  provided  in  Article  13  of 
giving  previous  notice  to  the  Government  was  infringed.  If  any 
argument  could  be  made  in  regard  to  the  annulment  of  the  latter 
assignment,  there  is  no  doubt  whatever  in  regard  to  the  annulment  of 
the  former,  whereas  in  the  foregoing  provision  the  Government  re- 
serves the  right  of  being  a contracting  party  in  the  assignment,  and 
consequently  said  assignment,  without  the  previous  consent  of  the 
Government,  is  devoid  of  judicial  efficacy. 

The  assignment  of  those  contracts  is,  therefore,  of  no  value  for  the 
Government  of  Venezuela. 

The  fifth  paragraph  of  the  same  refers  to  the  assignment  which  “The 
Orinoco  Shipping  and  Trading  Company  Limited”  intended  to  make 
ito  “The  Orinoco  Steamship  Company”  of  all  claims  and  demands  exist- 
r ing  in  favor  of  the  party  of  the  first  part,  either  against  the  Republic 
of  Venezuela  or  against  any  individuals,  firms,  or  corporations.  This 
transfer  of  credits,  which  are  not  specified  nor  even  declared,  and 
which  has  not  been  notified  to  the  Government,  is  absolutely  irregular, 
[ and  lacks  judicial  efficacy  with  regard  to  all  parties  except  the  assignor 
and  assignee  companies,  in  conformity  with  Article  1496  of  the  Civil 
Code,  which  provides  as  follows : 

An  assignee  has  no  rights  against  third  parties  until  after  the 
assignment  has  been  notified  to  the  debtor,  or  when  said  debtor 
has  accepted  said  assignment. 

The  foregoing  article  is,  in  substance,  identical  to  Article  1690  of  the 
French  Civil  Code,  and  in  reference  thereto  Baudry-Lacantinerie  says 
that — 


THE  ORINOCO  STEAMSHIP  COMPANY  CASE 


251 


Les  formalites  prescrites  par  I’art.  1690  ont  pour  but  de  donner  a 
la  cession  une  certaine  publicite,  et  c’est  pour  ce  motif  que  la  loi 
fait  de  leur  accomplissement  une  condition  de  I’investiture  du 
cessionnaire  a I’egard  des  tiers.  Les  tiers  sont  reputes  ignorer  la 
cession,  tant  qu’elle  n’a  pas  ete  rendue  publique  par  la  signification 
du  transport  ou  par  I’acceptation  authentique  du  cede ; voila  pour- 
quoi  elle  ne  leur  devient  opposable  qu’a  date  de  I’accomplissement 
de  I’une  ou  de  I’autre  de  ces  formalites.  (Precis  du  Droit  Civil. 
Tome  troisieme,  p.  394,  numero  624.) 

Quelles  sont  les  personnes  que  I’article  1690  designe  sous  le  nom 
de  tiers,  et  a I’egard  desquelles  le  cessionnaire  n’est  saisi  que  par  la 
notification  ou  I’acceptation  authentique  du  transport?  Ce  sont  tons 
ceux  qui  n’ont  pas  ete  parties  a la  cession  et  qui  ont  un  in- 
teret  legitime  a la  connaitre  et  a la  contester,  c’est-a-dire : 1.  le 
cede ; 2.  tons  ceux  qui  ont  acquis  du  chef  du  cedant  des  droits  sur 
la  creance  cedee;  3.  les  creanciers  chirographaires  du  cedant. 

1.  Le  debiteur  cede. — Jusqu’a  ce  que  le  transport  lui  ait  ete 
notife  ou  qu’il  Tait  accepte,  le  debiteur  cede  a le  droit  de  con- 
siderer  le  cedant  comme  etant  le  veritable  titulaire  de  la  creance. 
La  loi  nous  fournit  trois  applications  de  ce  principe.  (Baudry- 
Lacantinerie,  work  and  vol.  quoted,  p.  395.  See  also  Laurent, 
“Principes  de  Droit  Civil,”  vol.  24,  p.  472.)^ 

I do  not  expect  that  the  foregoing  argnments  will  be  contested,  hav- 
ing recourse  to  the  following  provision  of  the  protocol; 


The  commissioners,  or  in  case  of  their  disagreement,  the  umpire, 
shall  decide  all  claims  upon  a basis  of  absolute  equity,  without 
regard  to  objections  of  a technical  nature  or  of  the  provisions  of 
local  legislation. 

^Translation  : The  formalities  prescribed  by  Article  1690  are  for  the  pur- 
pose of  giving  a certain  publicity  to  the  assignment,  and  it  is  for  this  reason 
that  the  law  makes  their  fulfilment  a condition  to  the  investiture  of  the  assignee 
as  regards  third  parties.  Third  parties  are  supposed  to  know  nothing  of  the 
assignment  so  long  as  it  has  not  been  made  public  by  the  notice  of  conveyance 
or  by  the  authentic  acceptance  of  the  debtor  whose  debt  is  assigned ; this  is  why 
it  can  be  alleged  against  them  only  after  the  fulfilment  of  one  or  the  other  of 
these  formalities. 

Who  are  these  persons  designated  by  Article  1690  by  the  name  of  third  parties 
and  with  respect  to  whom  the  debtor  whose  debt  is  assigned  is  only  responsible 
upon  notice  or  the  authentic  acceptance  of  the  conveyance?  They  are  all  those 
who  have  not  been  parties  to  the  assignment  and  who  have  a legitimate  interest 
in  knowing  about  it  and  opposing  it ; that  is  to  say : ( 1 ) the  debtor  whose  debt 
is  assigned;  (2)  all  those  who  have  acquired  through  the  assignor  rights  to  the 
claim  assigned;  (3)  the  creditors  holding  debts  against  the  assignor  in  writing. 

The  debtor  whose  debt  is  assigned.  Until  he  has  been  notified  of  the  con- 
veyance or  has  accepted  it  the  debtor  whose  debt  is  assigned  has  a right  to 
consider  the  assignor  as  being  the  true  owner  of  the  claim.  The  law  furnishes 
us  three  applications  of  this  principle. 


252 


THE  HAGUE  COURT  REPORTS 


If  such  a broad  sense  were  given  to  this  clause  in  regard  to  all  cases 
as  to  bar  any  consideration  for  Venezuelan  law,  it  would  not  only  be 
absurd,  but  monstrous.  Such,  however,  can  not  be  the  case.  How 
could  a claim  possibly  be  disallowed  on  the  grounds  of  the  claimant 
being  a Venezuelan  citizen  without  invoking  the  Venezuelan  law, 
which  bestows  upon  him  said  citizenship?  How  in  certain  commissions 
could  Venezuela  have  been  exempted  from  having  to  pay  for  damages 
caused  by  revolutionists  if  the  judicial  principles  which  establish  such 
exemption  had  not  been  pleaded  ? Said  clause  provides  that  no  regard 
shall  be  had  to  objections  of  a technical  nature,  or  of  the  provisions 
of  local  legislation,  whenever  such  objections  impair  principles  of 
equity,  but  when,  in  compliance  with  said  principles,  to  disregard  those 
objections  would  be  to  overthrow  equity  itself,  and  equity  has  to  be 
the  basis  for  all  the  decisions  of  this  commission.  In  the  present  in- 
stance conformity  exists  between  the  one  and  the  others.  And  in 
merely  adding  that  the  majority  of  the  cited  provisions  are  in  reference 
to  contracts,  it  is  understood  that  their  basis  has  been  equity  and  not 
rigorous  law.  On  the  other  hand,  if  this  commission  were  to  decide 
upon  paying  an  award  for  a claim  which  the  claimant  company  is 
not  properly  entitled  to,  through  not  being  the  owner  thereof,  it  would 
be  a contention  against  the  precepts  of  equity. 

In  view,  therefore,  of  the  substantial  irregularities  of  the  deed  of 
assignment  and  transfer,  the  Government  of  Venezuela  has  a perfect 
right  to  consider  “The  Orinoco  Shipping  and  Trading  Company  Lim- 
ited” as  the  sole  owner  of  the  claims  analyzed,  and  whereas  said  com- 
J pany  is  of  British  nationality,  this  Venezuelan-American  Mixed  Com- 
mission has  no  jurisdiction  to  entertain  the  claim  mentioned. 

The  incompetency  of  this  commission  has  been  perfectly  established. 
I shall  now  analyze  the  claims  themselves.  The  Orinoco  Steamship 
Company  holds  that  the  Executive  decree  promulgated  on  October  5, 
1900,  allowing  the  free  navigation  of  the  Macareo  and  Pedernales 
channels,  annulled  its  contract  concession  of  Mky  26,  1894,  which  con- 
tract the  claimant  company  considered  as  granting  it  the  exclusive 
right  to  carry  on  foreign  trade  through  said  channels.  The  company 
states  as  follows: 

Since  said  16th  day  of  December,  A.  D.  1901,  notwithstanding 
the  binding  contract  and  agreement  between  the  United  States 
of  Venezuela  and  the  Orinoco  Shipping  and  Trading  Company 
Limited,  and  your  memorialist  as  assignee  of  said  company,  to 
the  contrary,  said  United  States  of  Venezuela,  acting  through  its 
duly  constituted  officials,  has  authorized  and  permitted  said  Mac- 


THE  ORINOCO  STEAMSHIP  COMPANY  CASE 


253 


areo  and  Pedernales  channels  of  the  river  Orinoco  to  be  used  and 
navigated  by  vessels  engaged  in  foreign  trade  other  than  those  be- 
longing to  your  memorialists  or  its  predecessors  in  interest,  and 
has  thus  enabled  said  vessels  to  do  much  of  the  business  and  to  ob- 
tain the  profits  therefrom  which,  under  the  terms  of  said  contract- 
concession  of  June  8,  1894,  and  the  extension  thereof  of  May  10, 
1900,  should  have  been  done  and  obtained  solely  by  your  memorial- 
ist or  its  said  predecessor  in  interest,  and  much  of  said  business 
will  continue  to  be  done  and  the  profits  derivable  therefrom  will 
continue  to  be  claimed  and  absorbed  by  persons  and  companies 
other  than  your  memorialists,  to  its  great  detriment  and  damage. 
(Memorial,  pp.  28  and  29.) 

Let  us  state  the  facts  such  as  they  appear  in  the  respective  docu- 
' ments. 

On  July  1,  1893,  the  Executive  power  issued  a decree  in  order  to 
prevent  contraband  which  was  carried  on  in  the  several  bocos  (mouths) 
of  the  river  Orinoco,  to  wit: 

Article  1.  Vessels  engaged  in  foreign  trade  with  Ciudad  Bolivar 
shall  be  allowed  to  proceed  only  by  way  of  the  Boca  Grande  of  the 
river  Orinoco ; the  Macareo  and  Pedernales  channels  being  re- 
served for  the  coastal  service,  navigation  by  the  other  channels  of 
the  said  river  being  absolutely  prohibited. 

On  May  26,  1894,  the  Executive  power  entered  into  a contract  with 
Mt.  Ellis  Grell,  represented  by  his  attorney,  Mr.  Manuel  Antonio 
Sanchez,  wherein  the  contractor  undertook  to  establish  and  maintain 
in  force  navigation  by  steamers  between  Ciudad  Bolivar  and  Mara- 
caibo in  such  manner  that  at  least  one  journey  per  fortnight  be  made, 
touching  at  the  ports  of  La  Vela,  Puerto  Cabello,  La  Guaira,  Guanta, 
Puerto  Sucre,  and  Carupano.  Article  12  of  this  contract  stipulates 
as  follows : 

While  the  Government  fixes  definitely  the  transshipment  ports 
for  merchandise  from  abroad,  and  while  they  are  making  the  neces- 
sary installations,  the  steamers  of  this  line  shall  be  allowed  to  call 
at  the  ports  of  Curagao  and  Trinidad  and  any  one  of  the  steamers 
leaving  Trinidad  may  also  navigate  by  the  channels  of  the  Macareo 
and  Pedernales  of  the  river  Orinoco  in  conformity  with  the  formal- 
ities which  by  special  resolution  may  be  imposed  by  the  minister  of 
finance  in  order  to  prevent  contraband  and  to  safeguard  fiscal  in- 
terests ; to  all  which  conditions  the  contractor  agrees  beforehand. 

On  October  5,  1900,  the  national  Executive  promulgated  the  follow- 
ing decree: 


254 


THE  HAGUE  COURT  REPORTS 


Article  I.  The  decree  of  the  1st  of  July,  1893,  which  prohibited 
the  free  navigation  of  the  Macareo,  Pedemales,  and  other  navigable 
waterways  of  the  river  Orinoco  is  abolished. 

Did  the  1894  contract  grant  the  Orinoco  Shipping  and  Trading  Com- 
pany Limited  an  exclusive  privilege  to  engage  in  foreign  trade  with 
the  use  of  said  Macareo  and  Pedemales  channels?  The  perusal  of 
Article  12  above  referred  to  will  suffice  without  the  least  hesitation  to 
answer  this  question  negatively.  The  fact  is  that  the  company’s  con- 
tract-concession is  for  establishing  the  inward  trade  between  the  ports 
of  the  Republic,  from  Ciudad  Boli\’ar  to  Maracaibo,  and  the  com- 
pany’s steamers  were  only  granted  a temporary'  p>ermission  to  call  at 
Curasao  and  Trinidad,  while  the  Goz’emment  fixed  definitely  the  trans- 
shipment ports  for  merchandise  from  abroad,  and  xvhile  they  were  mak- 
ing the  necessary  installations. 

It  would  be  necessary’  to  overthrow  the  most  rudimental  laws  of 
logic  in  order  to  hold  that  a line  of  steamers  established  to  engage  in 
coastal  trade  or  cabotaje,  navigating  on  the  Macareo  and  Pedemales 
channels,  which  are  free  for  internal  navigation,  should  have  the 
privilege  of  engaging  in  foreign  trade  through  the  mentioned  chan- 
nels. The  decree  of  July  1 of  1893,  promulgated  with  a view  to  pre- 
vent contraband  in  the  channels  of  the  river  Orinoco  and  on  the  coast 
of  Paria,  is  not  a stipulation  of  the  contract  concession  of  the  Orinoco 
Shipping  and  Trading  Comi>any  Limited,  and  therefore  the  Govern- 
ment of  \’enezuela  could  willingly  abolish  it,  as,  in  fact,  it  did  abolish 
it  on  October  5,  1900.  Neither  is  it  reasonable  to  suppose  that  the 
Government  at  the  time  of  celebrating  the  referred-to  contract  alien- 
ated its  legislative  powers,  which,  owing  to  their  nature,  are  inalien- 
able. On  the  other  hand,  a privilege,  being  an  exception  to  common 
law,  must  be  most  clearly  established ; otherwise  it  does  not  exist. 
Whenever  interpretation  is  required  by  a contract  it  should  be  given 
in  the  sense  of  freedom,  or,  in  other  words,  exclusive  of  privileges. 

Furthermore,  it  is  to  be  remarked  that  the  Orinoco  Shipping  and 
Trading  Company  Limited  has  never  complied  \rith  either  of  the  two 
contracts  (the  Olachea  and  the  Grell  contracts)  particularly  as  refers 
to  the  latter,  as  evidenced  by  a document  issued  by  said  company, 
a copy  of  which  I shall  present,  and  as  evidenced  also  by  the  memorial 
(No.'l5). 

On  May  10,  1900,  a settlement  was  agreed  to  by  the  minister  of 
internal  affairs  and  the  Orinoco  Shipping  and  Trading  Company 
Limited,  in  virtue  whereof  the  Government  undertook  to  pay  the 


THE  ORINOCO  STEAMSHIP  COMPANY  CASE 


255 


company  200,000  bolivars  for  all  its  claims  prior  to  said  convention, 
having  forthwith  paid  said  company  100,000  bolivars,  and  at  the  same 
time  a resolution  was  issued  by  said  minister  granting  the  Grell  con- 
tract (May  26,  1894)  a further  extension  of  six  years. 

The  company  holds  that  the  decree  of  October  5,  1900,  annulled  its 
contract  and  also  annihilated  the  above-mentioned  prorogation,  and 
that,  as  the  concession  of  said  prorogation  had  been  the  principal  basis 
of  the  settlement  for  the  company  to  reduce  its  credits  to  200,000  boli- 
vars, said  credits  now  arise  in  their  original  amount. 

It  has  already  been  proved  that  the  referred-to  Executive  decree 
of  October  5,  1900,  did  not  annul  the  Grell 'contract,  and  this  will 
suffice  to  evidence  the  unreasonableness  of  such  contention.  It  must,| 
furthermore,  be  added  that  the  settlement  and  the  concession  for  pro-  [ 
rogation  are  not  the  same  act,  nor  do  they  appear  in  the  same  docu-| 
ment ; therefore  it  can  not  be  contended  that  the  one  is  a condition  or 
stipulation  of  the  other.  Besides,  the  concession  for  prorogation 
accounts  for  itself  without  having  to  relate  it  to  the  settlement ; whereas 
in  the  resolution  relative  to  said  prorogation  the  company  on  its  part 
renounced  its  right  to  the  subsidy  of  4,000  bolivars  which  the  Govern- 
ment had  assigned  to  it  in  Article  7 of  the  contract. 

The  Venezuelan  Commissioner  considers  that  this  commission  has 
no  jurisdiction  to  entertain  the  claim  deduced  by  the  Orinoco  Steam-  f 
ship  Company,  and  that,  in  case  it  had,  said  claims  ought  to  be  dis- 
allowed. 


Award  of  Charles  Augustinus  Henri  Barge,  umpire  in  the  original 
Orinoco  Steamship  Company  Case  before  the  United  States  and 
Venezuelan  Claims  Commission  of  ipo^. — Caracas,  February  22, 
1904} 

A difference  of  opinion  arising  between  the  commissioners  of  the 
United  States  of  North  America  and  the  United  States  of  Venezuela, 
this  case  was  duly  referred  to  the  umpire. 

The  umpire  having  fully  taken  into  consideration  the  protocol,  and 
also  the  documents,  evidence  and  arguments,  and  also  likewise  all 
other  communications  made  by  the  two  parties,  and  having  impartially 
and  carefully  examined  the  same,  has  arrived  at  the  decision  embodied 
in  the  present  award. 


'^United  States  and  Venezuela  Arbitration  at  the  Hague,  Appendix  to  the  Case 
of  the  United  States,  vol.  i,  p.  686.  See  ante,  p.  243,  note  1,  2nd  paragraph. 


256 


THE  HAGUE  COURT  REPORTS 


Whereas  the  Orinoco  Steamship  Company  demands  payment  of  the 
Government  of  Venezuela  for  four  claims,  as  follows; 

1st.  $1,209,7(X).05  as  due  for  damages  and  losses  caused  by  the 
Executive  decree  of  October  5th,  1900,  having  [by]  this  decree  an- 
nulled a contract  concession  celebrated  on  May  26th,  1894; 

2nd.  100,000  bolivars,  or  $19,219.19  overdue  on  account  of  a trans- 
action celebrated  on  May  10th,  1900; 

3rd.  $149,698.71  for  damages  and  losses  sustained  during  the 
last  revolution,  including  services  rendered  to  the  Government  of  the 
Republic ; 

4th.  $25,000  for  counsel  fees  and  expenses  incurred  in  carrying  out 
said  claims ; 

And  whereas  the  jurisdiction  of  this  commission  in  this  case  is 
questioned,  this  question  has  in  the  first  place  to  be  investigated  and 
decided ; 

Now,  whereas  the  protocol  (on  which  alone  is  based  the  right  and 
the  duty  of  this  commission  to  examine  and  decide  “upon  a basis  of 
absolute  equity,  without  regard  to  the  objections  of  a technical  nature 
or  of  the  provisions  of  local  legislation”),  gives  this  commission  the 
right  and  imposes  the  duty  to  examine  and  decide  “all  claims  owned 
by  citizens  of  the  United  States  of  America  against  the  Republic  of 
Venezuela  which  have  not  been  settled  by  diplomatic  agreement  or  by 
arbitration  between  the  two  Governments,  and  which  shall  have  been 
presented  to  the  commission  by  the  Department  of  State  of  the  United 
States  or  its  legation  at  Caracas,”  it  has  to  be  examined  in  how  far 
this  claim  of  the  Orinoco  Steamship  Company  possesses  the  essential 
qualities  to  fall  under  the  jurisdiction  of  this  commission; 

Now,  whereas  this  claim  against  the  Venezuelan  Government  was 
presented  to  this  commission  by  the  Department  of  State  of  the 
United  States  of  America  through  its  agent ; 

And  whereas  it  has  not  been  settled  by  diplomatic  agreement  or 
arbitration ; 

And  whereas  the  Orinoco  Steamship  Company,  as  evidence  shows, 
is  a corporation  created  and  existing  under  and  by  virtue  of  the  laws 
of  the  State  of  New  Jersey,  in  the  United  States  of  America, 

There  only  remains  to  be  examined  if  the  company  owns  the  claim 
brought  before  the  commission ; 

Now,  whereas  almost  all  the  items  of  this  claim — at  all  events  those 
originated  before  the  1st  of  April,  1902 — are  claims  that  “the  Orinoco 
Shipping  and  Trading  Company,  Limited,”  an  English  corporation, 
pretended  to  have  against  the  Government  of  Venezuela ; 


THE  ORINOCO  STEAMSHIP  COMPANY  CASE 


257 


And  whereas  on  the  said  April  1st,  1902,  the  said  English  company, 
for  the  sum  of  $1,000,000,  sold  and  transferred  to  the  American  com- 
pany, the  complainant  {claimant^,  “all  its  claims  and  demands  either 
against  the  Government  of  Venezuela  or  against  individuals,  firms  and 
corporations,”  these  claims  from  that  date  prima  facie  show  themselves 
as  owned  by  the  claimant; 

Whereas  further  on  it  is  true  that  according  to  the  admitted  and 
practiced  rule  of  international  law,  in  perfect  accordance  with  the 
general  principles  of  justice  and  perfect  equity,  claims  do  not  change 
nationality  by  the  fact  that  their  consecutive  owners  have  a different 
citizenship,  because  a state  is  not  a claim  agent,  but  only,  as  the 
infliction  of  a wrong  upon  its  citizens  is  an  injury  to  the  state  itself, 
it  may  secure  redress  for  the  injury  done  to  its  citizens,  and  not  for 
the  injury  done  to  the  citizens  of  another  state, 

Still,  this  rule  may  be  overseen  or  even  purposely  set  aside  by  a' 
treaty. 

And  as  the  protocol  does  not  speak — as  is  generally  done  in  such 
cases — of  all  claims  of  citizens,  etc.  (which  would  rightly  be  inter- 
preted “all  claims  for  injuries  done  to  citizens,  etc.”),  but  uses  the 
usual  expression  “all  claims  owned  by  citizens,”  it  must  be  held  that^ 
this  uncommon  expression  was  not  used  without  a determined  reason ; 

And  whereas  the  evidence  shows  that  the  Department  of  State  of  the 
United  States  of  America  knew  about  these  claims  and  took  great 
interest  in  them  (as  is  shown  by  the  diplomatic  correspondence  about 
these  claims  presented  to  the  commission  in  behalf  of  claimant),  and 
that  the  plenipotentiary  of  Venezuela  a short  time  before  the  signing 
of  the  protocol,  in  his  character  of  United  States  envoy  extraordinary 
and  minister  plenipotentiary,  had  corresponded  with  his  Government 
about  these  claims,  and  that  even  as  late  as  December  20th,  1902,  and 
January  27th,  1903,  one  of  the  directors  of  the  claimant  company,  J. 
van  Vechten  Olcott,  wrote  about  these  claims,  in  view  of  the  event  of 
arbitration,  to  the  President  of  the  United  States  of  America,  it  is  not 
to  be  accepted  that  the  high  contracting  parties,  anxious,  as  is  shown 
by  the  history  of  the  protocol,  to  set  aside  and  to  settle  all  questions 
about  claims  not  yet  settled  between  them,  should  have  forgotten  these 
very  important  claims  when  the  protocol  was  redacted  and  signed, 

And,  therefore,  it  may  safely  be  understood  that  it  was  the  aim  of  the 
high  contracting  parties  that  claims  [such]  as  these,  being  at  the  mo- 
ment of  the  signing  of  the  protocol  owned  by  citizens  of  the  United 
States  of  North  America,  should  fall  under  the  jurisdiction  of  the 


258 


THE  HAGUE  COURT  REPORTS 


commission  instituted  to  investigate  and  decide  upon  the  claims  the 
^high  contracting  parties  wished  to  see  settled, 

And,  therefore,  the  jurisdiction  of  this  commission  to  investigate  and 
decide  claims  owned  by  citizens  of  the  United  States  of  North  America 
at  the  moment  of  the  signing  of  the  protocol  has  to  be  recognized, 
.without  prejudice,  naturally,  of  the  judicial  power  of  the  commission, 
I and  its  duty  to  decide  upon  a basis  of  absolute  equity  when  judging 
about  the  rights  the  transfer  of  the  ownership  might  give  to  claimant 
against  third  parties. 

For  all  which  reasons  the  claims  presented  to  this  commission  on 
behalf  of  the  American  company,  “the  Orinoco  Steamship  Company,” 
have  to  be  investigated  by  this  commission  and  a decision  has  to  be 
given  as  to  the  right  of  the  claimant  company  to  claim  what  it  does 
claim,  and  as  to  the  duty  of  the  Venezuelan  Government  to  grant  to 
the  claimant  company  what  this  company  claims  for. 

Now,  as  the  claimant  company  in  the  first  place  claims  for  $1,209,- 
700.05  as  due  for  damages  and  losses  caused  by  the  Executive  decree 
of  October  5th,  1900,  this  decree  having  annulled  a contract  conces- 
sion celebrated  on  May  26th,  1894,  this  contract-concession  and  this 
decree  have  to  be  examined,  and  it  has  to  be  investigated : 

Whether  this  decree  annulled  the  contract-concession ; 

-^Whether  this  annulment,  when  stated,  caused  damages  and  losses ; 

“Whether  the  Government  of  Venezuela  is  liable  for  those  damages 
and  losses; 

And,  in  the  case  of  this  liability  being  proved,  whether  it  is  to 
claimant  the  Government  of  Venezuela  is  liable  for  these  damages 
and  losses. 

And  whereas  the  mentioned  contract  concession  (a  contract  with  Mr. 
Ellis  Grell,  transferred  to  the  Venezuelan  citizen,  Manuel  A.  Sanchez, 
and  approved  by  Congress  of  the  United  States  of  Venezuela  on  the 
26th  of  May,  1894)  reads  as  follows : 

The  Congress  of  the  United  States  of  Venezuela,  in  view  of  the 
contract  celebrated  in  this  city  on  the  17th  of  January  of  the 
present  year  between  the  minister  of  the  interior  of  the  United 
States  of  Venezuela,  duly  authorized  by  the  chief  of  the  national 
executive,  on  the  one  part,  and  on  the  other,  Edgar  Peter  Gan- 
teaume,  attorney  for  Ellis  Grell,  transferred  to  the  citizen  Manuel 
A.  Sanchez,  and  the  additional  article  of  the  same  contract  dated 
10th  of  May  instant,  the  tenor  of  which  is  as  follows : 

Dr.  Feliciano  Acevedo,  minister  of  the  interior  of  the  United 
States  of  Venezuela,  duly  authorized  by  the  chief  of  the  national 
executive,  on  the  one  part,  and  Edgar  Peter  Ganteaume,  attorney 


THE  ORINOCO  STEAMSHIP  COMPANY  CASE 


259 


tor  Ellis  Grell,  and  in  the  latter’s  name  and  representation,  who 
is  resident  in  Port  of  Spain,  on  the  other  part,  and  with  the  af- 
firmative vote  of  the  government  council  have  celebrated  a con- 
tract set  out  in  the  following  articles  : 

Article  1.  Ellis  Grell  undertakes  to  establish  and  maintain  in 
force ; navigation  by  steamers  between  Ciudad  Bolivar  and  Mar- 
acaibo within  the  term  of  six  months,  reckoned  from  the  date  of 
this  contract,  in  such  manner  that  at  least  one  journey  per  fort- 
night be  made,  touching  at  the  p>orts  of  La  Vela,  Puerto  Cabello, 
' La  Guaira,  Guanta,  Puerto  Sucre,  and  Carupano,  with  power  to 
extend  the  line  to  any  duly  established  port  of  the  Republic. 

Article  2.  The  steamers  shall  navigate  under  the  Venezuelan 
, flag. 

Article  3.  The  contractor  undertakes  to  transport  free  of 
charge  the  packages  of  mail  which  may  be  placed  on  board  the 
steamers  by  the  authorities  and  merchants  through  the  ordinary 
post-offices,  the  steamers  thereby  acquiring  the  character  of  mail 
steamers,  and  as  such  exonerated  from  all  national  dues. 

Article  4.  The  contractor  shall  draw  up  a tariff  of  passages 
and  freights  by  agreement  with  the  Government. 

Article  5.  The  company  shall  receive  on  board  each  steamer  a 
Government  employee  with  the  character  of  fiscal  postmaster, 
nominated  by  the  minister  of  finance,  with  the  object  of  looking 
after  the  proper  treatment  of  the  mails  and  other  fiscal  interests. 

The  company  shall  also  transport  public  employees  when  in 
commission  of  the  Government  at  half  the  price  of  the  tariff, 
provided  always  that  they  produce  an  order  signed  by  the  minister 
of  finance  or  by  one  of  the  presidents  of  the  States.  Military  men 
on  service  and  troops  shall  be  carried  for  the  fourth  part  of  the 
tariff  rates.  The  company  undertakes  also  to  carry  gratis  materials 
of  war,  and  at  half  freights  all  other  goods  which  may  be  shipped 
for  account  and  by  order  of  the  National  Government. 

Article  6.  The  General  Government  undertakes  to  concede  to 
no  other  line  of  steamers  any  of  the  benefits,  concessions  and  ex- 
emptions contained  in  the  present  contract  as  compensation  for 
the  services  which  the  company  undertakes  to  render  as  well  to 
national  interests  as  those  of  private  individuals. 

Article  7.  The  Government  of  Venezuela  will  pay  to  the  con- 
tractor a monthly  subsidy  of  four  thousand  bolivars  (4,000)  so 
tong  as  the  conditions  of  the  present  contract  are  duly  carried  out. 

Article  8.  The  National  Government  undertakes  to  exonerate 
from  payment  of  import  duties  all  machinery,  tools,  and  accesso- 
ries which  may  be  imported  for  the  use  of  the  steamers  and  all 
other  materials  necessary  for  their  repair,  and  also  undertakes 
to  permit  the  steamers  to  supply  themselves  with  coal  and  pro- 
visions, etc.,  in  the  ports  of  Curasao  and  Trinidad. 

Article  9.  The  company  shall  have  the  right  to  cut  from  the 
national  forests  wood  for  the  construction  of  steamers  or  neces- 
sary buildings  and  for  fuel  for  the  steamers  of  the  line. 


260 


THE  HAGUE  COURT  REPORTS 


Article  10.  The  officers  and  crews  of  the  steamers,  as  also 
the  woodcutters  and  all  other  employees  of  the  company,  shall 
be  exempt  from  military  service,  except  in  cases  of  international 
war. 

Article  11.  The  steamers  of  the  company  shall  enjoy  in  all  the 
ports  of  the  Republic  the  same  freedom  and  preferences  by  law 
established  as  are  enjoyed  by  the  steamers  of  lines  established  with 
fixed  itinerary. 

Article  12.  While  the  Government  fixes  definitely  the  trans- 
shipment ports  for  merchandise  from  abroad,  and  while  they  are 
making  the  necessary  installations,  the  steamers  of  this  line  shall 
be  allowed  to  call  at  the  ports  of  Curasao  and  Trinidad,  and  any 
one  of  the  steamers  leaving  Trinidad  may  also  navigate  by  the 
channels  of  the  Macareo  and  Pedernales  of  the  river  Orinoco  in 
conformity  with  the  formalities  which  by  special  resolution  may 
be  imposed  by  the  minister  of  finance,  in  order  to  prevent  contra- 
band and  to  safeguard  fiscal  interests ; to  all  which  conditions  the 
contractor  agrees  beforehand. 

Article  13.  This  contract  sliall  remain  in  force  for  fifteen 
years,  reckoned  from  the  date  of  its  approbation,  and  may  be 
transferred  by  the  contractor  to  another  person  or  corporation 
upon  previous  notice  to  the  Government. 

Article  14.  Disputes  and  controversies  which  may  arise  with 
regard  to  the  interpretation  or  execution  of  this  contract  shall  be 
resolved  by  the  tribunals  of  the  Republic  in  accordance  with  the 
laws  of  the  nation,  and  shall  not  in  any  case  be  considered  as  a 
[motive  for  international  reclamations. 

Two  copies  of  this  contract  of  the  same  tenor  and  effect  were 
made  in  Caracas  the  seventeenth  day  of  January,  1894. 

(Signed)  Feliciano  Acevedo 
(Signed)  Edward  P.  Ganteaume 

Additional  Article.  Between  the  minister  of  the  interior  of 
the  United  States  of  Venezuela  and  citizen  Manuel  A.  Sanchez, 
concessionnary  of  Mr.  Ellis  Grell,  have  agreed  to  modify  the 
eighth  article  of  the  contract  made  on  the  17th  day  of  January 
of  the  present  year  for  the  coastal  navigation  between  Ciudad 
Bolivar  and  Maracaibo  on  the  following  terms : 

Article  8.  The  Government  undertakes  to  exonerate  from  pay- 
ment of  import  duties  the  machinery,  tools  and  articles  which 
may  be  imported  for  the  steamers,  and  all  other  materials  destined 
for  the  repairs  of  the  steamers ; while  the  Government  fixes  the 
points  of  transport  and  coaling  ports,  the  contractor  is  hereby 
permitted  to  take  coal  and  provisions  for  the  crew  in  the  ports  of 
Curasao  and  Trinidad. 

Caracas,  10th  May,  1894. 

Signed : Jose  R.  Nunez 

Signed:  M.  A.  Sanchez 


THE  ORINOCO  STEAMSHIP  COMPANY  CASE 


261 


And  whereas  the  mentioned  executive  decree  of  October  5th,  1900, 
reads  as  follows : 


DECREE 

Article  1.  The  decree  of  the  1st  of  July,  1893,  which  pro- 
hibited the  free  navigation  of  the  Macareo,  Pedernales,  and  other  ' 
navigable  waterways  of  the  river  Orinoco  is  abolished.  . 

Article  2.  The  minister  of  interior  relations  is  charged  with 
the  execution  of  the  present  decree. 

Now  whereas  in  regard  to  the  said  contract  it  has  to  be  remarked 
that  in  almost  all  arguments,  documents,  memorials,  etc.,  presented 
on  behalf  of  the  claimant  it  is  designated  as  a concession  for  the  exclu- 
sive navigation  of  the  Orinoco  River  by  the  Macareo  or  Pedernales 
channels,  whilst  in  claimant’s  memorial  it  is  even  said  that  “the  chief 
and  indeed  only  value  of  this  contract  was  the  exclusive  right  lo 
navigate  the  Macareo  and  Pedernales  channels  of  the  river  Orinoco, 
and  that,  according  to  claimant,  this  concession  of  exclusive  right  was 
annulled  by  the  aforesaid  decree,  and  that  it  is  for  the  losses  that  were  \ 
the  consequence  of  the  annullment  of  this  concession  of  exclusive  right 
that  damages  were  claimed. 

The  main  question  to  be  examined  is  whether  the  Venezuelan  Gov- 
ernment by  said  contract  gave  a concession  for  the  exclusive  naviga- 
tion of  said  channels  of  said  river,  and  whether  this  concession  of  ^ 
exclusive  navigation  was  annulled  by  said  degree. 

And  whereas  the  contract  shows  that  Ellis  Grell  (the  original  con- 
tractor) pledged  himself  to  establish  and  maintain  in  force  navigation 
by  steamers  between  Ciudad  Bolivar  and  Maracaibo,  touching  at  the 
ports  of  La  Vela,  Puerto  Cabello,  La  Guaira,  Guanta,  Puerto  Sucre, 
and  Carupano,  and  to  fulfil  the  conditions  mentioned  in  Articles  2,  3, 

4 and  5,  whilst  the  Venezuelan  Government  promised  to  grant  to  Grell 
the  benefits,  concessions  and  exemptions  outlined  in  Articles  7,  8,  9,  . 
11  and  12,  and  in  Article  6 pledges  itself  to  concede  to  no  other  line  of  I 
steamers  any  of  the  benefits,  concessions,  and  exemptions  contained  ' 
in  the  contract,  the  main  object  of  the  contract  appears  to  be  the  assur- 
ance of  a regular  communication  by  steamer  from  Ciudad  Bolivar  to 
Maracaibo,  touching  the  duly  established  Venezuelan  ports  between 
those  two  cities.  For  the  navigation  between  these  duly  established 
ports  no  concession  or  permission  was  wanted,  but  in  compensation  to 
Grell’s  engagement  to  establish  and  maintain  in  force  for  fifteen  years 
(Article  13)  this  communication,  the  Venezuelan  Government  ac- 


262 


THE  HAGUE  COURT  REPORTS 


corded  him  some  privileges  which  it  undertook  to  grant  to  no  other  line 
of  steamers. 

Whereas  therefore  this  contract  in  the  whole  does  not  show  itself 
as  a concession  for  exclusive  navigation  of  any  waters,  but  as  a con- 
tract to  establish  a regular  communication  by  steamers  between  the 
duly  established  principal  ports  of  the  Republic,  the  pretended  conces- 
sion for  exclusive  navigation  of  the  Macareo  and  Pedernales  channels 
must  be  sought  in  Article  12  of  the  contract,  the  only  article  in  the 
whole  contract  in  which  mention  of  them  is  made. 

And  whereas  this  article  in  the  English  version  in  claimant’s  memo- 
rial, reads  as  follows ; 

While  the  Government  fixes  definitely  the  transshipment  ports 
for  merchandise  from  abroad,  and  while  they  are  making  the 
necessary  installations,  the  steamers  of  this  line  shall  be  allowed 
to  call  at  the  ports  of  Curasao  and  Trinidad,  and  any  one  of  the 
steamers  leaving  Trinidad  may  also  navigate  by  the  channels  of 
the  Macareo  and  Pedernales  of  the  river  Orinoco,  etc., 

it  seems  clear  that  the  p>ermission  in  this  article — ^by  which  article 
the  permission  of  navigating  the  said  channels  was  not  given  to  the 
claimant  in  general  terms  and  for  all  its  ships  indiscriminately  but 
only  for  the  ships  leaving  Trinidad — would  only  have  force  for  the 
time  till  the  Government  would  have  fixed  definitely  the  transshipment 
ports,  which  it  might  do  at  any  moment  and  till  the  necessary  installa- 
tions were  made,  and  not  for  the  whole  term  of  the  contract,  which 
according  to  Article  13  would  remain  in  force  for  fifteen  years; 

And  whereas  this  seems  clear  when  reading  the  English  version  of 
the  contract  as  cited  in  the  memorial,  it  seems,  if  possible,  still  more 
evident  when  reading  the  original  Spanish  text  of  this  article,  of  which 
the  above-mentioned  English  version  gives  not  a quite  correct  transla- 
tion, from  which  Spanish  text  reading  as  follows  [jtV.]  : 

Art.  12.  Mientras  el  Gobierno  fija  definitivamente  los  puertos 
de  trasbordo  para  las  mercancias  procedentes  del  extranjero,  y 
mientras  hace  las  necesarias  instalaciones,  las  sera  permitido  a los 
buques  de  la  linea,  tocar  en  los  puertos  de  Curagao  y de  Trinidad, 
pudiendo  ademas  navegar  el  vapor  que  saiga  de  la  ultima  Antilla 
por  los  canos  de  Macareo  y de  Pedernales  del  Rio  Orinoco,  previas 
las  formalidades  que  por  resolucion  especial  dictara  el  Ministerio 
de  Hacienda  para  impair  el  contrabando  en  resguardo  de  los  inte- 
reses  fiscales ; y a las  cuales  de  antemano  se  somete  el  contratista. 


THE  ORINOCO  STEAMSHIP  COMPANY  CASE 


263 


(The  words  ‘‘el  vapor  que  saiga  de  la  ultim-a  Antilla”  being  given 
in  the  English  version  as  “any  one  of  the  steamers  leaving  Trinidad.”) 

It  can  not  be  misunderstood  that  this  “el  vapor”  is  the  steamer 
that  had  called  at  Trinidad  according  to  the  permission  given  for  the 
special  term  that  the  “while”  (mientras)  would  last;  wherefore  it 
seems  impossible  that  the  permission  given  in  Article  12  only  for  the 
time  there  would  exist  circumstances  which  the  other  party  might 
change  at  any  moment  could  ever  have  been  the  main  object,  and,  as 
is  stated  in  the  memorial,  “the  chief  and,  indeed,  only  value”  of  a con- 
tract that  was  first  made  for  the  term  of  fifteen  years,  which  term  later 
on  even  was  prolonged  to  twenty-one  years. 

And  whereas  therefore  it  can  not  be  seen  how  this  contract  conces- 
sion for  establishing  and  maintaining  in  force  for  fifteen  years  a com- 
munication between  the  duly  established  ports  of  Venezuela  can  be 
called  a concession  for  the  exclusive  navigation  of  the  said  channels, 
when  the  permission  to  navigate  these  channels  was  only  annexed  to 
rthe  permission  to  call  at  Trinidad  and  would  end  with  that  permission, 
whilst  the  obligation  to  navigate  between  the  ports  of  Venezuela  from 
Ciudad  Bolivar  to  Maracaibo  would  last ; 

And  whereas  on  the  contrary  all  the  stipulations  of  the  contract 
are  quite  clear  when  holding  in  view  the  purpose  why  it  was  given, 
viz,  to  establish  and  maintain  in  force  a communication  between  the 
duly  established  ports  of  Venezuela,  i.  e.,  a regular  coastal  service  by 
steamers. 

Because  to  have  and  retain  the  character  and  the  rights  of  ships 
bound  to  coastal  service  it  was  necessary  that  the  ships  should  navi- 
gate under  Venezuelan  flag  (Article  2),  that  they  should  have  a special 
permission  to  call  at  Curasao  and  Trinidad  to  supply  themselves  with 
coal  and  provisions  (Article  8),  which  stipulation  otherwise  would  seem 
without  meaning  and  quite  absurd,  as  no  ship  wants  a special  permis- 
sion of  any  government  to  call  at  the  ports  of  another  government, 
and  to  call  at  the  same  foreign  ports  for  transshipment  while  the  gov- 
ernment fixed  definitely  the  transshipment  ports  (Article  12).  In  the 
same  way  during  that  time  a special  permission  was  necessary  for  the 
ship  leaving  Trinidad  to  hold  and  retain  this  one  right  of  ships  bound 
to  coastal  service — to  navigate  by  the  channels  of  Macareo  and  Peder- 
nales — which  special  permission  would  not  be  necessitated  any  longer  i 
as  soon  as  the  Government  could  fix  definitely  the  Venezuelan  ports! 
that  would  serve  as  transshipment  ports,  because  then  they  would  per 
se  enjoy  the  right  of  all  ships  bound  to  coastal  service,  viz,  to  navigate 
through  the  mentioned  channels. 


264 


THE  HAGUE  COURT  REPORTS 


What  is  called  a concession  for  exclusive  navigation  of  the  men- 
tioned channels  is  shown  to  be  nothing  but  a permission  to  navigate 
Hhese  channels  as  long  as  certain  circumstances  should  exist. 

And  whereas  therefore  the  contract  approved  by  decree  of  the  8th 
of  June,  1894,  never  was  a concession  for  the  exclusive  navigation  of 
said  channels  of  the  Orinoco ; and  whereas  the  decree  which  reopened 
these  channels  for  free  navigation  could  not  annul  a contract  that 
never  existed ; 

All  damages  claimed  for  the  annulling  of  a concession  for  exclusive 
navigation  of  the  Macareo  and  Pedernales  channels  of  the  Orinoco 
River  must  be  disallowed. 

Now  whereas  it  might  be  asked  if  the  permission  to  navigate  by 
those  channels,  given  to  the  steamer  that  on  its  coastal  trip  left  Trini- 
dad, was  not  one  of  the  “benefits,  concessions  and  exemptions”  that 
the  Government  in  Article  6 promised  not  to  concede  to  any  other  line 
of  steamers ; 

It  has  not  to  be  forgotten  that  in  Article  12  the  Government 
did  not  give  a general  permission  to  navigate  by  the  said  channels, 
but  that  this  whole  article  is  a temporal  measure  taken  to  save 
the  character  and  the  rights  of  coastal  service,  to  the  service  which 
was  the  object  of  this  contract,  during  the  time  the  Government  had 
not  definitely  fixed  the  transshipment  ports ; and  that  it  was  not  an 
elementary  part  of  the  concession,  that  would  last  as  long  as  the  con- 
cession itself,  but  a mere  arrangement  by  which  temporarily  the  right 
of  vessels  bound  to  coastal  service,  viz.,  to  navigate  said  channels,  would 
be  safeguarded  for  the  vessel  that  left  Trinidad  as  long  as  the  vessels 
of  this  service  would  be  obliged  to  call  at  this  island,  and  that  there- 
fore the  benefit  and  the  exemption  granted  by  this  article  was  not  to 
navigate  by  said  channels,  but  to  hold  the  character  and  right  of  a coastal 
vessel,  notwithstanding  having  called  at  the  foreign  port  of  Trinidad; 
and  as  this  privilege  was  not  affected  by  the  reopening  of  the  channels 
to  free  navigation,  and  the  Government  by  aforesaid  decree  did  not 
give  any  benefit,  concession  and  exemption  granted  to  this  concession 
to  any  other  line  of  steamers,  a claim  for  damages  for  the  reopening 
of  the  channels  based  on  Article  6 can  not  be  allowed.  It  may  be  that 
the  concessionary  and  his  successors  thought  that  during  all  the  twenty- 
one  years  of  this  concession  the  Government  of  Venezuela  would  not 
definitely  fix  the  transshipment  ports,  nor  reopen  the  channels  to  free 
navigation,  and  [on]  those  thoughts  based  a hope  that  was  not  fulfilled 
and  formed  a plan  that  did  not  succeed ; but  it  would  be  a strange  ap- 
pliance of  absolute  equity  to  make  the  government  that  grants  a con- 


THE  ORINOCO  STEAMSHIP  COMPANY  CASE 


265 


cession  liable  for  the  not  realized  dreams  and  vanished  “chateaux  en 
Espagne”  of  inventors,  promoters,  solicitors  and  purchasers  of  con- 
cessions. 

But  further  on — even  when  it  might  be  admitted  that  the  reopening 
of  the  channels  to  free  navigation  might  furnish  a ground  to  base  a 
claim  on  {quod  non) — whilst  investigating  the  right  of  claimant  and  the 
liability  of  the  Venezuelan  Government,  it  has  not  to  be  forgotten  that, 
besides  the  already-mentioned  articles,  the  contract  has  another  article, 
viz.,  Article  14,  by  which  the  concessionary  pledges  himself  not  to  sub- 
mit any  dispute  or  controversies  which  might  arise  with  regard  to  the 
interpretation  or  execution  of  this  contract  to  any  other  tribunal  but 
to  the  tribunals  of  the  Republic,  and  in  no  case  to  consider  these  dis- 
putes and  controversies  a motive  for  international  reclamation,  which 
article,  as  the  evidence  shows,  was  repeatedly  disregarded  and  tres- 
passed upon  by  asking  and  urging  the  intervention  of  the  English  and 
United  States  Governments  without  ever  going  for  a decision  to  the 
tribunals  of  Venezuela; 

And  as  the  unwillingness  to  comply  with  this  pledged  duty  is  clearly 
shown  by  the  fact  that  the  English  Government  called  party’s  atten- 
tion to  this  article,  and,  quoting  the  article,  added  the  following  words, 
which  certainly  indicated  the  only  just  point  of  view  from  which 
such  pledges  should  be  regarded: 

Although  the  general  international  rights  of  His  Majesty’s  Gov- 
ernment are  in  no  wise  modified  by  the  provisions  of  this  docu- 
ment to  which  they  were  not  a party,  the  fact  that  the  company, 
have  so  far  as  lay  in  their  power,  deliberately  contracted  them- 
selves out  of  every  remedial  recourse  in  case  of  dispute,  except 
that  which  is  specified  in  Article  14  of  the  contract,  is  undoubtedly 
an  element  to  be  taken  into  serious  consideration  when  they  subse- 
quently appeal  for  the  intervention  of  His  Majesty’s  Government; 

And  whereas  the  force  of  this  sentence  is  certainly  in  no  wise  weak- 
ened by  the  remark  made  against  it  on  the  side  of  the  concessionary, 
that  ‘‘the  terms  of  Article  14  of  the  contract  have  absolutely  no  con- 
nection whatever  with  the  matter  at  issue,”  because  “no  doubt  or  contro- 
versy has  arisen  with  respect  to  the  interpretation  and  execution  of  the 
contract,”  but  that  “what  has  happened  is  this,  that  the  Venezuelan 
Government  has,  by  a most  dishonest  and  cunningly  devised  trick, 
defrauded  the  company  to  the  extent  of  entirely  ntdlifying  a conces- 
sion which  it  had  legally  acquired  at  a very  heavy  cost,”  whereas,  on 
the  contrary,  it  is  quite  clear  that  the  only  question  at  issue  was 


266 


THE  HAGUE  COURT  REPORTS 


whether  in  Article  12,  in  connection  with  Article  6,  a concession  for 
exclusive  navigation  was  given  or  not — ergo,  a question  of  doubt  and 
controversy  about  the  interpretation; 

And  whereas  the  following  words  of  the  English  Government  ad- 
dressed to  the  concessionary  may  well  be  considered : 

The  company  does  not  appear  to  have  exhausted  the  legal  reme- 
dies at  their  disjx>sal  before  the  ordinary  tribunals  of  the  country 
and  it  would  be  contrary  to  international  practice  for  His 
Majesty’s  Government  formally  to  intervene  in  their  behalf  through 
the  diplomatic  channel  unless  and  until  they  should  be  in  a position 
to  show  that  they  had  exhausted  their  ordinary  remedies  with 
a result  that  a prima  facie  case  of  failure  or  denial  of  justice  re- 
mained ; 

For  whereas,  if  in  general  this  is  the  only  just  standpoint  from  which 
to  view  the  right  to  ask  and  to  grant  the  means  of  diplomatical  inter- 
vention and  in  consequence  casu  quo  of  arbitration,  how  much  the 
more  where  the  recourse  to  the  tribunals  of  the  country  was  formally 
pledged  and  the  right  to  ask  for  intervention  solemnly  renounced  by ' 
contract,  and  where  this  breach  of  promise  was  formally  pointed  to  by' 
the  government  whose  intervention  was  asked; 

Whereas  therefore  the  question  imposes  itself,  whether  absolute 
equity  ever  would  permit  that  a contract  be  willingly  and  purposely 
trespassed  upon  by  one  party  in  view  to  force  its  binding  power  on  the 
other  party; 

And  whereas  it  has  to  be  admitted  that,  even  if  the  trick  to  change 
a contract  for  reg^ular  coastal  service  into  a concession  for  exclusive 
navigation  succeeded  {quod  non),  in  the  face  of  absolute  equity  the  trick 
of  making  the  same  contract  a chain  for  one  party  and  a screw-press 
for  the  other  never  can  have  success : 

It  must  be  concluded  that  Article  14  of  the  contract  disables  the  con- 
tracting parties  to  base  a claim  on  this  contract  before  any  other 
tribunal  than  that  which  they  have  freely  and  deliberately  chosen,  and 
to  parties  in  such  a contract  must  be  applied  the  words  of  the  Hon.  Mr. 
Finley,  United  States  Commissioner  in  the  Claims  Commission  of 
1889:  “So  they  have  made  their  bed  and  so  they  must  lie  in  it.” 

But  there  is  still  more  to  consider. 

For  whereas  it  appears  that  the  contract  originally  passed  with 
Grell  was  legally  transferred  to  Sanchez  and  later  on  to  the  English 
company  “The  Orinoco  Shipping  and  Trading  Company  Limited,”  and 
on  the  1st  day  of  April,  1902,  was  sold  by  this  company  to  the  Ameri- 
can company,  the  claimant ; 


THE  ORINOCO  STEAMSHIP  COMPANY  CASE 


267 


But  whereas  Article  13  of  the  contract  says  that  it  might  be  trans- 
ferred to  another  j>erson  or  corporation  upon  previous  notice  to  the 
Government,  whilst  the  evidence  shows  that  this  notice  has  not  been 
previously  (indeed  ever)  given;  the  condition  on  which  the  contract/ 
might  be  transferred  not  being  fulfilled,  the  “Orinoco  Shipping  and/ 
Trading  Company  Limited”  had  no  right  to  transfer  it,  and  this 
transfer  of  the  contract  without  previous  notice  must  be  regarded  as  ' 
null  and  utterly  worthless ; 

Wherefore,  even  if  the  contract  might  give  a ground  to  the  above- 
examined  claim  to  “The  Orinoco  Shipping  and  Trading  Company 
Limited”  (once  more  quod  non),  the  claimant  company  as  quite  alien 
to  the  contract  could  certainly  never  base  a claim  on  it. 

For  all  which  reasons  every  claim  of  the  Orinoco  Steamship  Com- 
pany against  the  Republic  of  the  United  States  of  Venezuela  for  the 
annulment  of  a concession  for  the  exclusive  navigation  of  the  Macareo  | 
and  Pedernales  channels  of  the  Orinoco  has  to  be  disallowed. 

As  for  the  claim  for  100,000  bolivars,  or  $19,219.19,  overdue  on  a 
transaction  celebrated  on  May  10th,  1900,  between  the  Orinoco  Ship- 
ping and  Trading  Company  Limited  and  the  Venezuelan  Government: 

Whereas  these  100,000  bolivars  are  those  mentioned  in  letter  B,  of 
Article  2 of  said  contract,  reading  as  follows: 

% 

(B)  One  hundred  thousand  bolivars  (100,000),  which  shall  be 
paid  in  accordance  with  such  arrangements  as  the  parties  hereto 
may  agree  upon  on  the  day  stipulated  in  the  decree  [of  the]  23d 
of  April,  ultimo,  relative  to  claims  arising  from  damages  caused 
during  the  war,  or  by  other  case  whatever ; 

And  whereas  nothing  whatever  of  any  arrangement,  in  accordance 
with  which  it  was  stipulated  to  pay,  appears  in  the  evidence  before 
the  commission,  it  might  be  asked  if,  on  the  day  this  claim  was  filed, 
this  indebtedness  was  proved  compellable ; 

Whereas  further  on,  in  which  way  ever  this  question  may  be 

decided,  the  contract  has  an  Article  4,  in  which  the  contracting  parties 
pledged  themselves  to  the  following:  “All  doubts  and  controversies 

which  may  arise  with  respect  to  the  interpretation  and  the  execution  of 
this  contract  shall  be  decided  by  the  tribunals  of  Venezuela  and  in 
conformity  with  the  laws  of  the  Republic,  without  such  mode  of  set- 
tlement being  considered  motive  of  international  claims,”  whilst  it  is 
shown  in  the  diplomatic  correspondence  brought  before  the  commis- 
sion on  behalf  of  claimant,  that  in  December,  1902,  a formal  petition 
to  make  it  [an]  international  claim  was  directed  to  the  Government  of 


268 


THE  HAGUE  COURT  REPORTS 


the  United  States  of  America  without  the  question  having  been  brought 
before  the  tribunals  of  Venezuela,  which  fact  certainly  constitutes  a 
( flagrant  breach  of  the  contract  on  which  the  claim  was  based ; 

And  whereas,  in  addition  to  everything  that  was  said  about  such 
clauses  here  above  it  has  to  be  considered  what  is  the  real  meaning  of 
such  a stipulation ; 

And  whereas  when  parties  agree  that  doubts,  disputes,  and  contro- 
versies shall  only  be  decided  by  a certain  designated  third  [person], 
they  implicitly  agree  to  recognize  that  there  properly  shall  be  no  claim 
from  one  party  against  the  other,  but  for  what  is  due  as  a result  of  a 
decision  on  any  doubt^  disputes  or  controversies  by  that  one  desig- 
nated third  [person]  ; for  which  reason,  in  addition  to  everything  that 
was  said  already  upon  this  question  heretofore,  in  questions  on  claims 
based  on  a contract  wherein  such  a stipulation  is  made  absolute  equity 
does  not  allow  to  recognize  such  a claim  between  such  parties  before 
the  conditions  are  realized,  which  in  that  contract  they  themselves 
made  conditions  sine  qua  non  for  the  existence  of  a claim ; 

And  whereas  further  on — even  in  the  case  the  contract  did  not  con- 
tain such  a clause,  and  that  the  arrangements,  in  accordance  to  which 
it  was  stipulated  to  pay  were  communicated  to  and  proved  before  this 
commission — it  ought  to  be  considered  that  if  there  existed  here  a 
recognized  and  compellable  indebtedness,  it  would  be  a debt  of  the 
Government  of  Venezuela  to  the  Orinoco  Shipping  and  Trading  Com- 
pany; 

For  whereas  it  is  true  that  evidence  shows  that  on  the  1st  of  April, 
1902,  all  the  credits  of  that  company  were  transferred  to  the  claimant 
company,  it  is  not  less  true  that,  as  shown  by  evidence,  this  transfer 
was  never  notified  to  the  Government  of  Venezuela ; 

And  whereas  according  to  Venezuelan  law,  in  perfect  accordance 
with  the  principles  of  justice  and  equity  recognized  and  proclaimed  in 
the  codes  of  almost  all  civilized  nations,  such  a transfer  gives  no  right 

(against  the  debtor  when  it  was  not  notified  to  or  accepted  by  that 
debtor ; 

And  whereas  here  it  can  not  be  objected  that  according  to  the  pro- 
tocol no  regard  has  to  be  taken  of  provisions  of  local  legislation, 
because  the  words  “the  commissioners  or,  in  case  of  their  disagree- 
ment, the  umpire  shall  decide  all  claims  upon  a basis  of  absolute 
equity,  without  regard  to  objections  of  a technical  nature,  or  of  the 
provisions  of  local  legislation,”  clearly  have  to  be  understood  in  the 
way  that  questions  of  technical  nature  or  the  provisions  of  local  legis- 
lation should  not  be  taken  into  regard  when  there  were  objection 


THE  ORINOCO  STEAMSHIP  COMPANY  CASE 


269 


against  the  rules  of  absolute  equity;  for,  in  case  of  any  other  inter- 
pretation, the  fulfilling  of  the  task  of  this  commission  would  be  an 
impossibility,  as  the  question  of  American  citizenship  could  never  be 
proved  without  regard  to  the  local  legislation  of  the  United  States  of 
America,  and  this  being  prohibited  by  the  protocol,  all  claims  would 
have  to  be  disallowed,  as  the  American  citizenship  of  the  claimant 
would  not  be  proved;  and  as  to  technical  questions  it  might  then  be 
maintained  (as  was  done  in  one  of  the  papers  brought  before  this  com- 
mission on  behalf  of  a claimant  in  one  of  the  filed  claims)  that  the 
question  whether  there  was  a proof  that  claimant  had  a right  to  a claim 
was  a mere  technical  question ; 

And  whereas,  if  the  provisions  of  local  legislation  far  from  being 
objections  to  the  rules  of  absolute  equity  are  quite  in  conformity  with 
those  rules,  it  would  seem  absolutely  in  contradiction  with  this  equity 
not  to  apply  its  rules,  because  they  were  recognized  and  proclaimed  by 
the  local  legislation  of  Venezuela ; 

And  whereas,  the  transfer  of  credits  from  “The  Orinoco  Shipping 
and  Trading  Company”  to  “The  Orinoco  Steamship  Company”  neither 
was  notified  to,  or  accepted  by  the  Venezuelan  Government,  it  can  not 
give  a right  to  a claim  on  behalf  of  the  last-named  company  against  ' 
the  Government  of  Venezuela: 

For  all  which  reasons  the  claim  of  the  Orinoco  Steamship  Company, 
Limited,  against  the  Government  of  Venezuela,  based  on  the  transac- 
tion of  May  10th,  1900,  has  to  be  disallowed. 

In  the  next  place  the  company  claims  $147,038.79,  at  which  sum  it 
estimates  the  damages  and  losses  sustained  during  the  last  revolution, 
including  services  rendered  to  the  Government  of  Venezuela. 

Now,  whereas  this  claim  is  for  damages  and  losses  suffered  and  for 
services  rendered  from  June  1900,  whilst  the  existence  of  the  com- 
pany only  dates  from  January  31st,  1902,  and  the  transfer  of  the  credits 
of  “the  Orinoco  Shipping  and  Trading  Company,  Limited,”  to  claim- 
ant took  place  on  the  1st  of  April  of  this  same  year,  it  is  clear  from 
what  heretofore  was  said  about  the  transfer  of  these  credits,  that  all 
items  of  this  claim,  based  on  obligations  originated  before  said  April 
1st,  1902,  and  claimed  by  claimant  as  indebtedness  to  the  afore-named 
company  and  transferred  to  claimant  on  said  April  1st,  have  to  be  dis- 
allowed as  the  transfer  was  never  notified  to  or  accepted  by  the  Vene- 
zuelan  Government.  As  to  the  items  dating  after  the  1st  of  April,  1902, 
in  the  first  place  the  claimant  claims  for  detention  and  hire  of  the 
steamship  Masparro  from  May  1st  to  September  18th,  1902  (141 
days),  at  100  pesos  daily,  = 14,100  pesos,  and  for  detention  and  hire  of 


270 


THE  HAGUE  COURT  REPORTS 


the  steamship  Socorro  from  March  21st  to  November  5th,  1902  ( 229 
days),  22,900  pesos,  together  37,000  pesos,  equal  to  $28,461.53; 

And  whereas  it  is  proved  by  evidence  that  said  steamers  have  been 
in  service  of  the  National  Government  for  the  time  above  stated ; 

And  whereas  nothing  in  the  evidence  shows  any  obligation  on  the 
part  of  the  owners  of  the  steamers  to  give  this  service  gratis,  even  if 
it  were  in  behalf  of  the  commonwealth ; 

Whereas  therefore  a remuneration  for  that  service  is  due  to  the 
.owners  of  these  steamers : 

The  Venezuelan  Government  owes  a remuneration  for  that  service 
to  the  owners  of  the  steamers; 

And  whereas  these  steamers,  by  contract  of  April  1st,  1902,  were 
bought  by  claimant,  and  claimant  therefore  from  that  day  was  owner 
of  the  steamers : 

I,  This  remuneration  from  that  date  is  due  to  claimant. 

And  whereas  in  this  case  it  differs  [^tV.]  not  that  the  transfer  of  the 
steamers  was  not  notified  to  the  Venezuelan  Government,  as  it  was  no 
transfer  of  a credit,  but  as  the  credit  was  bom  after  the  transfer,  and 
as  it  was  not  in  consequence  of  a contract  between  the  Government  and 
any  particular  person  or  company,  but,  as  evidence  shows,  because 
the  Government  wanted  the  steamers’  service  in  the  interest  of  its 
cause  against  revolutionary  forces ; and  whereas  for  this  forced  deten- 
tion damages  are  due,  those  damages  may  be  claimed  by  him  who  suf- 
fered them,  in  this  case  the  owners  of  the  steamers ; 

And  whereas  the  argument  of  the  Venezuelan  Government,  that  it 
had  counter-claims,  can  in  no  wise  affect  this  claim,  as  those  counter- 
claims the  Venezuelan  Government  alludes  to,  and  which  it  pursues 
before  the  tribunals  of  the  country,  appear  to  be  claims  against  “The 
Orinoco  Shipping  and  Trading  Company,”  and  not  against  claimant; 

And  whereas  it  differs  not  whether  claimant,  as  the  Government 
affirms  and  as  evidence  seems  clearly  to  show,  if  not  taking  part  in  the 
revolution,  at  all  events  favored  the  revolutionary  party,  because  the 
ships  were  not  taken  and  confiscated  as  hostile  ships,  but  were  claimed 
by  the  Government,  evidence  shows,  because  it  wanted  them  for  the 
use  of  political  interest,  and  after  that  use  were  returned  to  the  own- 
ers : For  all  these  reasons  there  is  due  to  claimant  from  the  side  of  the 
Venezuelan  Government,  a remuneration  for  the  service  of  the  steamers 
Masparro  and  Socorro,  respectively,  from  May  first  to  September  18th, 
1902  (141  days),  and  from  April  1st  to  November  5th,  1902  (219 
days,  together  360  days)  ; 


THE  ORINOCO  STEAMSHIP  COMPANY  CASE 


271 


And  whereas,  according  to  evidence  since  1894  these  steamers  might 
be  hired  by  the  Government  for  the  price  of  400  bolivars,  or  100 
pesos,  daily,  this  price  seems  a fair  award  for  the  forced  detention : 

Wherefore  for  the  detention  and  use  of  the  steamers  Masparro  and 
Socorro  the  Venezuelan  Government  owes  to  claimant  36,000  (thirty- 
six  thousand)  pesos,  or  $27,692.31.  / 

Further  on  claimant  claims  $2,520.50  for  repairs  to  the  Masparro 
and  $2,932.98  for  repairs  to  the  Socorro,  necessitated,  as  claimant 
assures,  by  the  ill  usage  of  the  vessels  whilst  in  the  hands  of  the  Ven- 
ezuelan Government. 

Now  whereas  evidence  only  shows  that  after  being  returned  to 
claimant  the  steamers  required  repairs  at  this  cost,  but  in  no  wise 
that  those  repairs  were  necessitated  by  ill  usage  on  the  side  of  the 
Government ; 

And  whereas  evidence  does  not  show  in  what  state  they  were 
received  and  in  what  state  they  were  returned  by  the  Government ; 

And  whereas  it  is  not  proved  that  in  consequence  of  this  use  by  the 
Government  they  suffered  more  damages  than  those  that  are  the 
consequence  of  common  and  lawful  use  during  the  time  they  were 
used  by  the  Government,  for  which  damages  in  case  of  hire  the  Gov- 
ernment would  not  be  responsible ; 

Where  the  price  for  which  the  steamers  might  be  hired  is  allowed 
for  the  use,  whilst  no  extraordinary  damages  are  proved,  equity  will 
not  allow  to  declare  the  Venezuelan  Government  liable  for  these 
repairs : 

Wherefore  this  item  of  the  claim  has  to  be  disallowed. 

Evidence  in  the  next  place  shows  that,  on  May  29  and  May  31,  1902, 
20  bags  of  rice,  10  barrels  potatoes,  10  barrels  onions,  16  tins  lard,  and 
two  tons  coal  were  delivered  to  the  Venezuelan  authorities  on  their 
demand  on  behalf  of  the  Government  forces,  and  for  these  provisions, 
as  expropriation  for  public  benefit,  the  Venezuelan  Government  will 
have  to  pay ; 

And  whereas  the  prices  that  are  claimed,  viz.,  $6  for  a bag  of  rice, 
$5  for  a barrel  [of]  potatoes,  $7  for  a barrel  [of]  onions,  $3  for  a tin 
[of]  lard,  and  $10  for  a ton  [of]  coal,  when  compared  with  the  market 
prices  at  Caracas,  do  not  seem  unreasonable,  the  sum  of  $308  will  have 
to  be  paid  for  them. 

As  for  the  further  $106.60  claimed  for  provisions  and  ship  stores, 
whereas  there  is  given  no  proof  of  these  provisions  and  stores  being 
taken  by  or  delivered  to  the  Government,  they  cannot  be  allowed. 


272 


THE  HAGUE  COURT  REPORTS 


For  passages  since  April  1st,  1902,  claimant  claims  $224.62,  and 
whereas  evidence  shows  that  all  these  passages  were  gpven  on  request 
of  the  Government,  the  claim  has  to  be  admitted,  and  whereas  the  prices 
charged  are  the  same  that  formerly  could  be  charged  by  the  “Orinoco 
Shipping  and  Trading  Company,”  these  prices  seemed  equitable; 

. Wherefore,  the  Venezuelan  Government  will  have  to  pay  on  this  item 
the  sum  of  $224.62. 

As  to  the  expenses  caused  by  stoppage  of  the  steamer  Bolivar  at  San 
Felix  when  Ciudad  Bolivar  fell  in  the  hands  of  the  revolution — 

Whereas  this  stoppage  was  necessitated  in  behalf  of  the  defense  of  the 
Government  against  revolution ; 

And  whereas  no  unlawful  act  was  done  nor  any  obligatory  act  was 
neglected  by  the  Government,  this  stoppage  has  to  be  regarded,  as  every 
stoppage  of  commerce,  industry,  and  communication  during  war  and 
revolution,  as  a common  calamity  that  must  be  commonly  suffered  and 
for  which  government  can  not  be  proclaimed  liable, 

Wherefore,  this  item  of  the  claim  has  to  be  disallowed. 

And  now  as  for  the  claim  of  $61,336.20  for  losses  of  revenue  from 
June  to  November,  1902,  caused  by  the  blockade  of  the  Orinoco: 

Whereas  a blockade  is  the  occupation  of  a belligerent  party  on  land 
and  on  sea  of  all  the  surroundings  of  a fortress,  a port,  a roadstead 
and  even  [of]  all  the  coasts  of  its  enemy,  in  order  to  prevent  all  com- 
mimication  with  the  exterior,  with  the  right  of  “transient’"  occupation 
until  it  puts  itself  into  real  possession  of  that  port  of  the  hostile  terri- 
tory, the  act  of  forbidding  and  preventing  the  entrance  of  a port  or 
a river  on  [its]  OTvn  territory  in  order  to  secure  internal  peace  and  to 
prevent  communication  with  the  place  occupied  by  rebels  or  a revolu- 
tionary party  can  not  properly  be  named  a blockade,  and  would  only 
be  a blockade  when  the  rebels  and  revolutionists  were  recognized  as  a 
belligerent  party; 

And  whereas  in  absolute  equity  things  should  be  judged  by  what  they 
are  and  not  by  what  they  are  called,  such  a prohibitive  measure  on 
[its]  own  territory  can  not  be  compared  with  blockade  of  a hostile 
place,  and  therefore  the  same  rules  can  not  be  adopted ; 

And  whereas  the  right  to  open  and  close,  as  a sovereign  on  its  own 
territory,  certain  harbors,  ports  and  rivers  in  order  to  prevent  Jhe  tres- 
passing of  fiscal  laws  is  not  and  could  not  be  denied  to  the  Venezuelan 
Government,  much  less  this  right  can  be  denied  when  used  in  defense 
not  only  of  some  fiscal  rights,  but  in  defense  of  the  very  existence  of 
the  Government ; 

And  whereas  the  temp>orary  closing  of  the  Orinoco  River  (the  so- 


THE  ORINOCO  STEAMSHIP  COMPANY  CASE 


273 


called  “blockade”)  in  reality  was  only  a prohibition  to  navigate  that 
river  in  order  to  prevent  communication  with  the  revolutionists  in 
Ciudad  Bolivar  and  on  the  shores  of  the  river,  this  lawful  act  by  itself 
could  never  give  a right  to  claims  for  damages  to  the  ships  that  used 
to  navigate  the  river; 

But  whereas  claimant  does  not  found  the  claim  on  the  closure  itself 
of  the  Orinoco  River,  but  on  the  fact  that,  notwithstanding  this  pro- 
hibition, other  ships  were  allowed  to  navigate  its  waters  and  were  dis- 
patched for  their  trips  by  the  Venezuelan  consul  at  Trinidad,  whilst 
this  was  refused  to  claimant’s  ships,  which  fact  in  the  brief  on  behalf 
of  the  claimant  is  called  “unlawful  discrimination  in  the  affairs  of  neu- 
trals,” it  must  be  considered  that  whereas  the  revolutionists  were  not 
recognized  belligerents  there  can  not  properly  here  be  spoken  of  “neu- 
trals” and  “the  rights  of  neutrals,”  but  that 

Whereas  it  here  properly  was  a prohibition  to  navigate ; 

And  whereas,  where  anything  is  prohibited,  to  him  who  held  and 
used  the  right  to  prohibit  can  not  be  denied  the  right  to  permit  in  cer- 
tain circumstances  what  as  a rule  is  forbidden. 

The  Venezuelan  Government,  which  prohibited  the  navigation  of  the 
Orinoco,  could  allow  that  navigation  when  it  thought  proper,  and  only 
evidence  of  unlawful  discrimination,  resulting  in  damages  to  third 
[parties],  could  make  this  permission  a basis  for  a claim  to  third 
parties ; 

Now,  whereas  the  aim  of  this  prohibitive  measure  was  to  crush  the 
rebels  and  revolutionists,  or  at  least  to  prevent  their  being  enforced, 
of  course  the  permission  that  exempted  from  the  prohibition  might 
always  be  given  where  the  use  of  the  permission,  far  from  endangering 
the  aim  of  the  prohibition,  would  tend  to  that  same  aim,  as,  for  instance, 
in  the  case  that  the  permission  were  given  to  strengthen  the  govern- 
mental forces  or  to  provide  in  [for]  the  necessities  of  the  loyal  part  of 
the  population ; 

And  whereas  the  inculpation  of  unlawful  discrimination  ought  to 
be  proved ; 

And  whereas,  on  one  side,  it  not  only  is  not  proved  by  evidence  that 
the  ships  cleared  by  the  Venezuelan  consul  during  the  period  in  ques- 
tion did  not  receive  the  permission  to  navigate  the  Orinoco  in  view  of 
one  of  the  aforesaid  aims ; 

But  whereas,  on  the  other  side,  evidence,  as  was  said  before,  shows 
that  the  Government  had  sufficient  reasons  to  believe  claimant,  if  not 
assisting  the  revolutionists,  at  least  to  be  friendly  and  rather  partial 
to  them,  it  can  not  be  recognized  as  a proof  of  unlawful  discrimination 


274 


THE  HAGUE  COURT  REPORTS 


that  the  Government,  holding  in  view  the  aim  of  the  prohibition  and 
defending  with  all  lawful  measures  its  own  existence,  did  not  give  to 
claimant  the  permission  it  thought  fit  to  give  to  the  above-mentioned 
ships ; 

And  whereas  therefore  no  unlawful  act  or  culpable  negligence  on 
the  part  of  the  Venezuelan  Government  is  proved  that  would  make 
the  Government  liable  for  the  damages  claimant  pretends  to  have  suf- 
fered by  the  interruption  of  the  navigation  of  the  Orinoco  River; 

This  item  of  the  claim  has  to  be  disallowed. 

The  last  item  of  this  claim  is  for  $25,000  for  counsel  fees  and 
expenses  incurred  in  carrying  out  the  above-examined  and  decided 
claims ; 

But  whereas  the  greater  part  of  the  items  of  the  claim  had  to  be 
disallowed ; 

And  whereas  in  respect  to  those  that  were  allowed  it  is  in  no  way 
proved  by  evidence  that  they  were  presented  [ ?]  to  and  refused  by  the 
Government  of  the  Republic  of  the  United  States  of  Venezuela,  and 
whereas  therefore  the  necessity  to  incur  those  fees  and  further  ex- 
penses in  con.sequence  of  an  unlawful  act  or  culpable  negligence  of  the 
Venezuelan  Government  is  not  proved,  this  item  has,  of  course,  to  be 
disallowed. 

For  all  which  reasons  the  Venezuelan  Government  owes  to  claimant: 


U.  S.  Gold 

For  detention  and  use  of  the  steamers  Masparro  and  Socorro, 

36,000  pesos,  or $27,692.31 

For  goods  delivered  for  use  of  the  Government 308.00 

For  passages 224.62 


Together  total 


28,224.93 


While  all  the  other  items  have  to  be  disallowed. 


THE  SAVARKAR  CASE 

between 

FRANCE  and  GREAT  BRITAIN 
Decided  February  24,  1911 

Syllabus 

This  case  arose  as  the  result  of  the  escape  of  Savarkar,  a Hindoo, 
who  was  being  transported  from  England  to  India  for  trial  on  a 
charge  of  abetment  of  murder,  and  who  at  Marseilles  on  July  8,  1910, 
escaped  to  the  shore  from  the  Morea,  a British  merchant  vessel,  which 
was  carrying  him.  While  being  pursued  by  Indian  policemen  from 
the  vessel,  he  was  captured  by  a French  police  officer,  who  returned 
him  to  the  Morea,  which  sailed  with  the  fugitive  on  board  on  the  fol- 
lowing day.  Subsequently,  France  demanded  the  restitution  of  the 
fugitive  on  the  ground  that  his  delivery  to^the  British  officers  on  boaxd 
the^  vessel  was  contrary  tq_  the  rule_s^  of_international  Jaw,  and,  upon 
Great  Britain’s  refusal  to  comply,  the  questions  of  law  and  fact  in- 
volved were,  by  a compromis  signed  October  25,  1910,^  submitted  to 
the  arbitration  of  a tribunal  composed  of  the  following  members  of 
the  Permanent  Court  of  Arbitration : Auguste  M.  F.  Beernaert  of 
Belgium,  Louis  Renault  of  France,  Gregors  Gram  of  Norway,  A.  F. 
de  Savornin  Lohman  of  Holland  and  the  Earl  of  Desart  of  England. 
The  sessions  began  February  14,  1911,  and  ended  February  17,  1911, 
the  decision  being  rendered  February  24,  1911. 

The  tribunal  found  that  previously  to  the  arrival  of  the  Morea  at 
Marseilles  arrangements  had  been  made  between  the  British  and 
French  police  to  prevent  the  escape  of  the  fugitive,  and  that,  although 
the  French  officer  who  arrested  him  may  have  been  ignorant  of  his 
identity,  there  was  no  fraud  or  force  used  to  obtain  possession  of  him 
and  the  failure  of  the  French  authorities  to  disavow  the  arrest  and 
delivery  before  the  ship  sailed  might  naturally  have  led  the  British 
police  to  believe  that  the  French  officer  acted  in  accordance  with  in- 
structions or  that  his  conduct  was  approved.  The  tribunal  held  that 
while  an  irregularity  was  committed  in  the  arrest  of  Savarkar  and  his 
delivery  to  the  British  police,  there  is  no  rule  of  international  lawv 
which  imposes  under  these  circumstances  any  obligation  on  the  Power 
which  has  the  custody  of  the  prisoner  to  restore  him  because  of  a ( 
mistake  made  by  the  foreign  agent  who  delivered  him  up. 


^Post,  p.  280. 


276 


THE  HAGUE  COURT  REPORTS 


AWARD  OF  THE  TRIBUNAL 

Award  of  the  tribunal  of  arbitration  in  the  case  of  Savarkar,  be- 
tween France  and  Great  Britain. — The  Hague,  February  24, 

1911.^ 

Whereas,  by  an  agreement  dated  October  25th,  1910,®  the  Gov- 
ernment of  the  French  Republic  and  the  Government  of  His  Britan- 
nic Majesty  agreed  to  submit  to  arbitration  the  questions  of  fact  and 
law  raised  by  the  arrest  and  restoration  to  the  mail  steamer  Morea 
at  Marseilles,  on  July  8th,  1910,  of  the  British  Indian  Savarkar,  who 
had  escaped  from  that  vessel  where  he  was  in  custody;  and  the  de- 
mand made  by  the  Government  of  the  French  Republic  for  the  resti- 
tution of  Savarkar; 

The  arbitral  tribunal  has  been  called  upon  to  decide  the  follow- 
ing question: 

Should  Vinayak  Damodar  Savarkar,  in  conformity  with  the  rules 
of  international  law,  be  restored  or  not  be  restored  by  His  Britannic 
Majesty’s  Government  to  the  Government  of  the  French  Republic? 

Whereas,  for  the  purpose  of  carrying  out  this  agreement,  the  two 
Governments  have  respectively  appointed  as  arbitrators : 

His  Excellency  Monsieur  Beemaert,  Minister  of  State,  member 
of  the  Belgian  Chamber  of  Representatives,  etc.,  president; 

The  Right  Honorable,  the  Earl  of  Desart,  formerly  His  Britannic 
Majesty’s  Procurator  General; 

Monsieur  Louis  Renault,  professor  at  the  University  of  Paris, 
Minister  Plenipotentiary,  Legal  Adviser  of  the  Department  of  For- 
eign Affairs; 

Monsieur  G.  Gram,  formerly  Norwegian  Minister  of  State,  Pro- 
vincial Governor; 

His  Excellency,  the  Jonkheer  A.  F.  de  Savomin  Lohman,  Minis- 
ter of  State,  member  of  the  Second  Chamber  of  the  States-General 
of  the  Netherlands. 

And,  further,  the  two  Governments  have  respectively  appointed 
as  their  agents. 

The  Government  of  the  French  Republic: 

^Official  report,  p.  54.  For  the  French  text,  see  Appendix,  p.  516. 

^Post,  p.  2^. 


THE  SAVARKAR  CASE 


277 


Monsieur  Andre  Weiss,  Assistant  Legal  Adviser  of  the  Depart- 
ment of  Foreign  Affairs  of  the  French  Republic,  professor  of  law 
at  the  University  of  Paris. 

The  Government  of  His  Britannic  Majesty : 

Mr.  Eyre  Crowe,  Counselor  of  Embassy,  a senior  clerk  at  the 
British  Foreign  Office. 

Whereas,  in  accordance  with  the  provisions  of  the  agreement, 
cases,  counter-cases  and  replies  have  been  duly  exchanged  between 
the  parties,  and  communicated  to  the  arbitrators. 

Whereas  the  tribunal  met  at  The  Hague  on  the  14th  February, 
1911. 

Whereas,  with  regard  to  the  facts  which  gave  rise  to  the  differ- 
ence of  opinion  between  the  two  Governments,  it  is  established  that, 
by  a letter  dated  June  29th,  1910,  the  Commissioner  of  the  Metro- 
politan Police  in  London  informed  the  Directeur  de  la  Surete  gen- 
erale  at  Paris,  that  the  British-Indian  Vinayak  Damodar  Savarkar 
was  about  to  be  sent  to  India,  in  order  to  be  prosecuted  for  abetment 
of  murder,  etc.,  and  that  he  would  be  on  board  the  vessel  Morea 
touching  at  Marseilles  on  the  7th  or  8th  July. 

Whereas,  in  consequence  of  the  receipt  of  this  letter,  the  Minis- 
try of  the  Interior  informed  the  Prefect  of  the  Bouches-du-Rhdne, 
by  a telegram  dated  the  4th  July,  1910,  that  the  British  police  was 
sending  Savarkar  to  India  on  board  the  steamship  Morea.  This 
telegram  states  that  some  “revolutionnaires  hindous”  [Hindu  revolu- 
tionaries] then  on  the  continent  might  take  advantage  of  this  to 
further  the  escape  of  this  foreigner,  and  the  Prefect  was  requested 
to  take  the  measures  necessary  to  guard  against  any  attempt  of  that 
kind. 

Whereas  the  Directeur  de  la  Surete  generale  replied  by  a letter 
dated  the  9th  July,  1910,  to  the  letter  of  the  Commissioner  of  the 
Metropolitan  Police,  stating  that  he  had  given  the  necessary  instruc- 
tions for  the  purpose  of  guarding  against  the  occurrence  of  any 
incident  during  the  presence  at  Marseilles  of  the  said  Vinayak 
Damodar  Savarkar,  on  board  the  steamship  Morea. 

Whereas,  on  the  7th  July,  the  Morea  arrived  at  Marseilles.  The 
following  morning,  between  6 and  7 o’clock,  Savarkar,  having  suc- 
ceeded in  effecting  his  escape,  swam  ashore  and  began  to  run;  he 
was  arrested  by  a brigadier  of  the  French  maritime  gendarmerie 


278 


THE  HAGUE  COURT  REPORTS 


and  taken  back  to  the  vessel.  Three  persons  who  had  come  ashore 
from  the  vessel  assisted  the  brigadier  in  taking  the  fugitive  back. 
On  the  9th  July,  the  Morea  left  Marseilles  with  Savarkar  on  board. 

Whereas,  from  the  statements  made  by  the  French  brigadier  to 
the  police  of  Marseilles,  it  appears : 

That  he  saw  the  fugitive,  who  was  almost  naked,  get  out  of  a 
porthole  of  the  steamer,  throw  himself  into  the  sea  and  swim  to  the 
quay; 

That  at  the  same  moment  some  persons  from  the  ship,  who  were 
shouting  and  gesticulating,  rushed  over  the  bridge  leading  to  the 
shore,  in  order  to  pursue  him ; 

That  a number  of  people  on  the  quay  commenced  to  shout 
Arretez-le”  ; 

That  the  brigadier  at  once  went  in  pursuit  of  the  fugitive  and, 
coming  up  to  him  after  running  about  five  hundred  metres,  arrested 
him. 

I Whereas  the  brig^adier  declares  that  he  was  altogether  unaware 
of  the  identity  of  the  person  with  whom  he  was  dealing,  that  he 
only  thought  that  the  man  who  was  escaping  was  one  of  the  crew, 
who  had  {x>ssibly  committed  an  offense  on  board  the  vessel. 

Whereas,  with  regard  to  the  assistance  afforded  him  by  one  of 
the  crew  and  two  Indian  policemen,  it  appears  from  the  explana- 
tions given  on  this  point,  that  these  men  came  up  after  the  arrest  of 
Savarkar,  and  that  their  intervention  was  only  auxiliary  to  the  ac- 
tion of  the  brigadier.  The  brigadier  had  seized  Savarkar  by  one 
arm  for  the  purpose  of  taking  him  back  to  the  ship,  and  the  prisoner 
went  peaceably  with  him.  The  brigadier,  assisted  by  the  above- 
mentioned  persons,  did  not  relax  his  hold  till  he  reached  the  half 
deck  of  the  vessel. 

The  brigadier  said  that  he  did  not  know  English. 

From  what  has  been  stated,  it  would  appear  that  the  incident  did 
not  occupy  more  than  a few  minutes. 

Whereas  it  is  alleged  that  the  brigadier  who  effected  the  arrest 
was  not  ignorant  of  the  presence  of  Savarkar  on  board  the  vessel, 
and  that  his  orders,  like  those  of  all  the  French  police  [agents]  and 
gendarmes,  were  to  prevent  any  Hindu  from  coming  on  board  who 
had  not  got  a ticket. 


THE  SAVARKAR  CASE 


279 


Whereas  these  circumstances  show  that  the  persons  on  board  in 
charge  of  Savarkar  might  well  have  believed  that  they  could  count 
on  the  assistance  of  the  French  police  [^agents'l . 

Whereas  it  is  established  that  a commissaire  of  the  French 
police  came  on  board  the  vessel  shortly  after  her  arrival  at  the  port, 
and  in  accordance  with  the  orders  of  the  Prefect,  placed  himself  at 
the  disposal  of  the  commander  in  respect  of  the  watch  to  be  kept ; 

That,  in  consequence,  this  commissaire  was  put  into  communi- 
cation with  the  British  police  officer  who,  with  other  police  officers, 
was  in  charge  of  the  prisoner; 

That  the  Prefect  of  Marseilles,  as  appears  from  a telegram  dated 
the  13th  July,  1910,  addressed  to  the  Minister  of  the  Interior,  stated 
that  he  had  acted  in  this  matter  in  accordance  with  instructions 
given  by  the  Siirete  generate  to  make  the  necessary  arrangements  to 
prevent  the  escape  of  Savarkar. 

Whereas,  having  regard  to  what  has  been  stated,  it  is  manifest 
that  the  case  is  not  one  of  recourse  to  fraud  or  force  in  order  to 
obtain  possession  of  a person  who  had  taken  refuge  in  foreign  ter- 
ritory, and  that  there  was  not,  in  the  circumstances  of  the  arrest 
and  delivery  of  Savarkar  to  the  British  authorities  and  of  his  re- 
moval to  India,  anything  in  the  nature  of  a violation  of  the  sover- 
eignty of  France,  and  that  all  those  who  took  part  in  the  matter 
certainly  acted  in  good  faith  and  had  no  thought  of  doing  anything 
unlawful. 

Whereas,  in  the  circumstances  cited  above,  the  conduct  of  the 
brigadier  not  having  been  disclaimed  by  his  chiefs  before  the  morn- 
ing of  the  9th  July,  that  is  to  say,  before  the  Morea  left  Marseilles, 
the  British  police  might  naturally  have  believed  that  the  brigadier 
had  acted  in  accordance  with  his  instructions,  or  that  his  conduct 
had  been  approved. 

Whereas,  while  admitting  that  an  irregularity  was  committed  by 
the  arrest  of  Savarkar  and  by  his  being  handed  over  to  the  British 
police,  there  is  no  rule  of  international  law  imposing,  in  circum- 
stances such  as  those  which  have  been  set  out  above,  any  obligation 
on  the  Power  which  has  in  its  custody  a prisoner,  to  restore  him 
because  of  a mistake  committed  by  the  foreign  agent  who  delivered 
him  up  to  that  Power. 


280 


THE  HAGUE  COURT  REPORTS 


For  these  reasons : The  arbitral  tribunal  decides  that  the  Govern- 
ment of  His  Britannic  Majesty  is  not  required  to  restore  the  said 
Vinayak  Damodar  Savarkar  to  the  Government  of  the  French  Re- 
public. 

Done  at  The  Hague,  at  the  Permanent  Court  of  Arbitration,  Feb- 
ruary 24th,  1911. 

The  President:  A.  Beernaert 

The  Secretary  General:  Michiels  van  Verduynen 


AGREEMENT  FOR  ARBITRATION 

Agreement  between  the  United  Kingdom  and  France  referring  to 

arbitration  the  case  of  Vinayak  Damodar  Savarkar. — Signed  at 

London,  October  25,  igio.^ 

The  Government  of  His  Britannic  Majesty  and  the  Government  of 
the  French  Republic,  having  agreed,  by  an  exchange  of  notes  dated 
the  4th  and  5th  October,  1910,  to  submit  to  arbitration,  on  the  one 
hand,  the  questions  of  fact  and  law  raised  by  the  arrest  and  restora- 
tion to  the  mail  steamer  Morea,  at  Marseilles,  on  the  8th  July,  1910, 
of  the  Indian,  Vinayak  Damodar  Savarkar,  who  had  escaped  from 
that  vessel,  on  board  of  which  he  was  in  custody;  and  on  the  other 
hand,  the  demand  of  the  Government  of  the  Republic  with  a view  to 
the  restitution  to  them  of  Savarkar; 

The  undersigned,  duly  authorized  to  this  effect,  have  arrived  at  the 
following  agreement: 

Article  1 

An  arbitral  tribunal,  composed  as  hereinafter  stated,  shall  under- 
take to  decide  the  following  question : 

Should  Vinayak  Damodar  Savarkar,  in  conformity  with  the  rules 
of  international  law,  be  restored  or  not  be  restored  by  His  Britannic 
Majesty’s  Government  to  the  Government  of  the  French  Republic? 

Article  2 

The  arbitral  tribunal  shall  be  composed  of  five  arbitrators  chosen 
from  the  members  of  the  Permanent  Court  at  The  Hague.  The  two 
contracting  Parties  shall  settle  the  composition  of  the  tribunal.  Each 
of  them  may  choose  as  arbitrator  one  of  their  nationals. 

^Official  report,  p.  7.  For  the  French  text,  see  Appendix,  p.  519. 


THE  SAVARKAR  CASE 


281 


Article  3 

On  the  6th  December,  1910,  each  of  the  high  contracting  Parties 
shall  forward  to  the  Bureau  of  the  Permanent  Court  fifteen  copies  of 
its  case,  with  duly  certified  copies  of  all  documents  which  it  proposes 
to  put  in.  The  Bureau  will  undertake  without  delay  to  forward  them 
to  the  arbitrators  and  to  each  party : that  is  to  say,  two  copies  for  each 
arbitrator  and  three  copies  for  each  party.  Two  copies  will  remain 
in  the  archives  of  the  Bureau. 

On  the  17th  January,  1911,  the  high  contracting  Parties  will 
deposit  in  the  same  manner  their  counter-cases,  with  documents  in 
support  of  them. 

These  counter-cases  may  necessitate  replies,  which  must  be  pre- 
sented within  a period  of  fifteen  days  after  the  delivery  of  the  coun- 
ter-cases. 

The  periods  fixed  by  the  present  agreement  for  the  delivery  of 
the  cases,  counter-cases,  and  replies  may  be  extended  by  mutual  agree- 
ment between  the  high  contracting  Parties. 

Article  4 

The  tribunal  shall  meet  at  The  Hague  the  14th  February,  1911. 

Each  party  shall  be  represented  by  an  agent,  who  shall  serve  as  in- 
termediary between  it  and  the  tribunal. 

The  arbitral  tribunal  may,  if  it  thinks  necessary,  call  upon  one  or 
other  of  the  agents  to  furnish  it  with  oral  or  written  explanations,  to 
which  the  agent  of  the  other  party  shall  have  the  right  to  reply. 

It  shall  also  have  the  right  to  order  the  attendance  of  witnesses. 

Article  5 

The  parties  may  employ  the  French  or  English  language.  The 
members  of  the  tribunal  may,  at  their  own  choice,  make  use  of  the 
French  or  English  language.  The  decisions  of  the  tribunal  shall  be 
drawn  up  in  the  two  languages. 

Article  6 

The  award  of  the  tribunal  shall  be  given  as  soon  as  possible,  and, 
in  any  case,  within  thirty  days  following  the  date  of  its  meeting  at 
The  Hague  or  that  of  the  delivery  of  the  written  explanations  which 
may  have  been  furnished  at  its  request.  This  period  may,  however. 


282 


THE  HAGUE  COURT  REPORTS 


be  prolonged  at  the  request  of  the  tribunal  if  the  two  high  contracting 
Parties  agree. 

Done  in  duplicate  at  London,  October  25,  1910. 

(l.  s.)  E.  Grey 
(l.  s.)  Paul  Gambon 

ADDITIONAL  DOCUMENTS 

Notes  of  October  25,  1910,  of  their  Excellencies  the  Right  Honorable 

Sir  Edward  Grey,  Principal  Secretary  of  State  of  His  Britannic 

Majesty,  and  Mr.  Paul  Cambon,  French  Ambassador  to  London, 

supplementary  to  the  Agreement  for  Arbitration  of  the  same  date.^ 

October  25,  1910. 

Your  Excellency:  With  reference  to  the  agreement  which  we 

have  concluded  this  day,  for  the  purpose  of  submitting  to  arbitration 
certain  matters  in  connection  with  the  arrest  and  restitution  of  Vin- 
ayak  Demodar  Savarkar,  at  Marseilles,  in  July  last,  I have  the  honour 
to  place  on  record  the  understanding  that  any  points  which  may  arise 
in  the  course  of  this  arbitration  which  are  not  covered  by  the  terms 
of  the  Agreement  above  referred  to  shall  be  determined  by  the  pro- 
visions of  the  International  Convention  for  the  pacific  settlement  of 
International  disputes  signed  at  The  Hagpie,  on  the  18th  of  October, 
1907. 

It  is  further  understood  that  each  party  shall  bear  its  own  expenses 
and  an  equal  share  of  the  expenses  of  the  Tribunal. 

It  have  the  honour,  etc. 

Signed:  E.  Grey 
October  25,  1910. 

Mr.  Minister;  I have  the  honor  to  acknowledge  your  Excel- 
lency’s note  of  this  day  relative  to  the  agreement  which  we  signed 
today  for  the  purpose  of  submitting  to  arbitration  certain  matters  con- 
cerning the  arrest  and  restitution  of  Vinayak  Damodar  Savarkar,  at 
Marseilles,  July  8 last.  I am  authorized  to  confirm,  with  your  Excel- 
lency, the  understanding  that  all  questions  which  may  arise  in  the 
course  of  this  arbitration,  which  are  not  covered  by  the  terms  of  the 
agreement  above  referred  to,  shall  be  determined  by  the  provisions 

^Official  report,  pp.  9,  10.  For  the  original  text  of  the  French  note,  see  Appen- 
dix, p.  520. 


THE  SAVARKAR  CASE 


283 


of  the  Convention  for  the  pacific  settlement  of  international  disputes 
signed  at  The  Hague,  October  18,  1907. 

It  is  further  understood  that  each  party  shall  bear  its  own  expenses 
and  an  equal  part  of  the  expenses  of  the  tribunal. 

Kindly  accept,  etc. 

Signed : Paul  Cambon 


THE  CANEVARO  CASE 

between 

ITALY  and  PERU 
Decided  May  3,  1912 
Syllabus 

The  claim  of  the  Italian  Government  against  Peru  on  behalf  of 
Napoleon,  Carlos  and  Rafael  Canevaro  originated  as  follows : It 
appears  that  on  December  12,  1880,  N.  de  Pierola,  at  the  time  dictator 
of  Peru,  issued  a decree  by  virtue  of  which  there  were  created,  under 
date  of  December  23,  1880,  pay  checks  (bans  de  paiement,  libramien- 
tos)  to  the  order  of  the  firm  of  Jose  Canevaro  & Sons  for  the  sum  of 
77,000  pounds  sterling,  payable  at  different  periods ; that  these  pay 
checks  were  not  paid  as  they  fell  due;  that  in  1885,  the  father  having 
died  in  1883,  the  firm  was  reorganized  with  Jose  Francisco,  Cesar  and 
Rafael  Canevaro,  Peruvian  citizens,  as  copartners,  forming  a Peru- 
vian corporation ; that  in  1885  the  Peruvian  Government  paid  35,000 
pounds  sterling  on  account,  leaving  due  and  outstanding  to  the  firm 
the  sum  of  43,140  pounds  sterling;  that  the  firm  remained  in  existence 
until  it  was  dissolved  in  1900  by  the  death  of  Jose  Francisco  Canevaro; 
and  that  the  pay  checks  (bons  de  paiement)  finally  passed  into  posses- 
sion of  Napoleon  and  Carlos  Canevaro,  Italian  subjects,  and  Rafael 
Canevaro,  whose  claim  to  Italian  nationality  was  contested  by  Peru. 

Differences  arose  between  the  claimants  and  Peru  as  to  whether  the 
pay  checks  should  be  paid  in  coin,  or  in  one  per  cent  bonds  in  accord- 
ance with  the  provisions  of  the  Peruvian  domestic  debt  law  of  June 
12,  1889,  as  to  the  amount  which  the  claimants  had  a right  to  demand, 
and  as  to  the  nationality  of  Rafael  Canevaro.  Peru  contended  that 
the  debt  was  contracted  by  Peru  with  a Peruvian  corporation  and 
that  therefore  its  settlement  was  entirely  a domestic  matter,  but, 
finally,  on  April  25,  1910,  as  the  result  of  diplomatic  negotiations  with 
Italy,  a compromise  was  signed,  submitting  the  questions  in  dispute  to 
a tribunal  of  the  Permanent  Court  of  Arbitration  at  The  Hague  com- 
posed of  the  following  members;  Louis  Renault  of  France,  Guido 
Fusinato  of  Italy  and  Manuel  Alvarez  Calderon  of  Peru.  The  ses- 
sions began  April  20,  1912,  and  ended  April  22,  1912,  the  decision 
being  rendered  May  3,  1912. 

The  tribunal  first  decided  the  status  of  Rafael  Canevaro.  It  con- 
sidered him  as  having  a twofold  nationality;  first,  by  birth  in  Peru, 
and,  secondly,  as  the  child  of  an  Italian  father;  but,  because  of  his 
having  acted  as  a Peruvian  citizen,  it  held  that  the  Government  of 


epost,  p.  294. 


THE  CANEVARO  CASE 


285 


Peru  had  a right  to  consider  him  as  such  and  to  deny  his  status  as  an 
Italian  claimant.  His  claim  was  therefore  dismissed. 

The  tribunal  found  that  the  firm  of  Canevaro  & Sons,  reorganized 
in  1885  upon  the  death  of  the  father,  was  composed  of  Peruvian  citi- 
zens, so  that  it  was  Peruvian  by  domicile  as  well  as  by  the  nationality 
of  its  members,  and  that  the  firm  remained  in  existence  until  it  was 
dissolved  in  1900  by  the  death  of  Jose  Francisco  Canevaro.  The  debt 
was  therefore  domestic  in  its  origin  and  subject  to  the  laws  of  Peru, 
especially  to  the  act  of  1889,  which  Canevaro  & Sons  had  recognized 
by  attempting  to  avail  itself  of  some  of  the  provisions  thereof. 
Napoleon  and  Carlos  Canevaro  urged  their  Italian  nationality  as  a 
reason  why  the  act  of  1889  should  not  affect  their  claim,  but  the 
tribunal  held  that  their  title  was  derivative  and  could  be  neither  bel- 
ter nor  worse  than  the  right  originally  acquired  by  the  firm  through 
which  they  directly  or  indirectly  claimed.  Hence,  instead  of  the  sum 
of  43,143  pounds  sterling,  they  were  only  entitled  to  the  bonds  issued 
in  1889  to  meet  this  indebtedness.  The  decision  as  to  the  amount  of 
the  claim  was  settled  by  the  tribunal’s  holding  that  it  should  be  paid 
in  bonds.  As  to  the  question  of  interest,  the  tribunal  decided  that  the 
bonds  or  pay  checks  (libramientos)  of  1880  bore  four  per  cent  until 
due,  and  after  this  period  until  payment  the  legal  rate  of  six  per  cent. 
But,  as  the  act  of  1889  provided  one  per  cent  interest,  the  tribunal 
allowed  four  per  cent  upon  the  original  outstanding  indebtedness  until 
the  date  of  maturity,  six  per  cent  after  that  date  until  the  first  of 
January,  1889,  and  one  per  cent  upon  the  bonds  issued  in  1889  until 
July  31,  1912,  at  which  date  the  bonds  were  to  be  paid.  The  tribunal, 
however,  provided  further  that  payment  might  be  delayed  until  the 
first  of  January,  1913,  but  that  from  the  first  of  August,  1912,  to  the 
first  of  January,  1913,  the  debt  should  bear  six  per  cent  interest. 


AWARD  OF  THE  TRIBUNAL 

Award  of  the  arbitral  tribunal  charged  with  passing  on  the  differ- 
ence  between  Italy  and  Peru  in  regard  to  the  claim  of  the  Canevaro 
brothers. — The  Hague,  May  5,  1912.^ 

Whereas,  by  a compromis  dated  April  25,  1910,^  the  Italian  and 
Peruvian  Governments  agreed  to  submit  the  following  questions  to 
arbitration : 

Should  the  Peruvian  Government  pay  in  cash,  or  in  accordance 
with  the  provisions  of  the  Peruvian  law  of  June  12,  1889,  on  the 
domestic  debt,  the  bills  of  exchange  (cambiali,  libramientos)  now  in 


^Translation.  For  the  original  French  text,  see  Appendix,  p.  522. 
^Post,  p.  294. 


286 


THE  HAGUE  COURT  REPORTS 


the  possession  of  the  brothers  Napoleon,  Carlos,  and  Rafael  Cane- 
varo,  which  were  drawn  by  the  Peruvian  Government  to  the  order 
of  the  firm  of  Jose  Canevaro  & Sons  for  the  sum  of  43,140  pounds 
sterling,  plus  the  legal  interest  on  the  said  amount? 

Have  the  Canevaro  brothers  a right  to  demand  the  total  amount 
claimed  ? 

Has  Count  Rafael  Canevaro  a right  to  be  considered  as  an  Italian 
claimant  ? 

Whereas,  pursuant  to  this  cotnpromis  the  following  persons  were 
designated  as  arbitrators: 

Mr.  Louis  Renault,  Minister  Plenipotentiary,  member  of  the  In- 
stitute, professor  in  the  Faculty  of  Law  at  the  University  of  Paris 
and  at  the  School  of  Political  Sciences,  Counselor  for  the  Ministry 
of  Foreign  Affairs,  president; 

Mr.  Guido  Fusinato,  Doctor  of  Law,  former  Minister  of  Public 
Instruction,  honorary  professor  of  international  law  at  the  Univer- 
sity of  Turin,  Deputy,  Counselor  of  State; 

His  Excellency  Mr.  Manuel  Alvarez  Calderon,  Doctor  of  Law, 
professor  at  the  University  of  Lima,  Envoy  Extraordinary  and 
Minister  Plenipotentiary  of  Peru  at  Brussels  and  Berne. 

Whereas,  the  two  Governments  have  respectively  appointed  as 
counsel ; 

The  Royal  Italian  Government : Professor  Vittorio  Scialoja, 

Senator  of  the  Kingdom  of  Italy  and  as  assistant  counsel.  Count 
Giuseppe  Francesco  Canevaro,  Doctor  of  Law; 

The  Peruvian  Government : Mr.  Manuel  Maria  Mesones,  Doctor 
of  Law,  attorney. 

Whereas,  in  accordance  with  the  terms  of  the  compromis,  the 
memorials  and  counter-memorials  have  been  duly  exchanged  be- 
tween the  parties  and  communicated  to  the  arbitrators; 

Whereas,  the  tribunal  met  at  The  Hague  on  April  20,  1912. 

Whereas,  in  order  to  simplify  the  following  statement  it  is  deemed 
best  to  pass  first  upon  the  third  question  contained  in  the  compromis, 
that  is,  the  question  of  the  status  of  Rafael  Canevaro; 

Whereas,  according  to  Peruvian  legislation  (Article  34  of  the 
Constitution),  Rafael  Canevaro  is  a Peruvian  by  birth  because  bom 
on  Peruvian  territory. 


THE  CANEVARO  CASE 


287 


And,  whereas,  on  the  other  hand,  according  to  Italian  legislation 
(Article  4 of  the  Civil  Code)  he  is  of  Italian  nationality  because 
bom  of  an  Italian  father; 

Whereas,  as  a matter  of  fact,  Rafael  Canevaro  has  on  several  oc- 
casions acted  as  a Peruvian  citizen,  both  by  running  as  a candidate 
for  the  Senate,  where  none  are  admitted  except  Peruvian  citizens 
and  where  he  succeeded  in  defending  his  election,  and,  particularly, 
by  accepting  the  office  of  Consul  General  for  the  Netherlands,  after 
having  secured  the  authorization  of  both  the  Peruvian  Government 
and  the  Peruvian  Congress ; 

Whereas,  under  these  circumstances,  whatever  Rafael  Canevaro’s 
status  as  a national  may  be  in  Italy,  the  Government  of  Peru  has 
a right  to  consider  him  a Peruvian  citizen  and  to  deny  his  status 
as  an  Italian  claimant. 

Whereas,  the  debt  which  gave  rise  to  the  claim  submitted  to  the 
tribunal  is  the  result  of  a decree  of  the  dictator  Pierola  of  December 
12,  1880,  by  virtue  of  which  there  were  issued,  under  date  of  the 
23d  of  the  same  month,  pay  checks  {hons  de  paiement,  libramientos) 
to  the  order  of  the  firm  of  Jose  Canevaro  & Sons  for  the  sum  of 
77,000  pounds  sterling,  payable  at  different  periods ; 

Whereas,  these  “checks”  were  not  paid  at  the  periods  set,  which 
periods  were  coincident  with  the  period  of  enemy  occupation ; 

Whereas,  a payment  on  account  of  35,000  pounds  sterling  was 
made  at  London  in  1885,  leaving  a debt  of  43,140  pounds  sterling, 
regarding  which  a decision  is  necessary; 

Whereas,  it  is  shown  from  the  facts  of  the  case  that  the  business 
firm  of  Jose  Canevaro  & Sons,  established  at  Lima,  was  reorganized 
in  1885,  after  the  death  of  its  founder  in  1883; 

Whereas  the  firm  name  of  Jose  Canevaro  & Sons  was  preserved 
though,  in  reality,  as  shown  by  the  act  of  liquidation  of  February 
6,  1905,  the  company  was  composed  of  Jose  Francisco  and  Cesar 
Canevaro,  whose  Peruvian  nationality  was  never  contested,  and  of 
Rafael  Canevaro,  whose  Peruvian  nationality,  in  accordance  with 
Peruvian  law,  has  just  been  recognized  by  the  tribunal; 

Whereas,  this  company,  whose  firm  name  was  Peruvian  and 
whose  members  were  of  Peruvian  nationality,  continued  to  exist 
until  the  death  of  Jose  Francisco  Canevaro,  in  1900. 


288 


THE  HAGUE  COURT  REPORTS 


Whereas,  it  was  during  the  existence  of  this  company  that  the 
Peruvian  laws  of  October  26,  1886,  June  12,  1889,  and  December 
17,  1898,  were  enacted,  prescribing  the  gravest  measures  with  re- 
gard to  the  debts  of  the  Peruvian  Government,  which  measures 
appeared  to  be  necessary  owing  to  the  deplorable  condition  to  which 
Peru  had  been  reduced  by  the  evils  of  foreign  and  civil  war  ■ 

Whereas,  it  is  not  the  place  of  the  tribunal  to  pass  judgment  upon 
the  provisions  themselves  of  the  laws  of  1889  and  1898,  which  pro- 
visions were  indeed  very  severe  upon  the  creditors  of  Peru,  but  as 
these  provisions  were,  without  doubt,  forced  upon  Peruvian  indi- 
viduals and  corporations  alike,  the  tribunal  can  but  recognize  the 
fact. 

Whereas,  on  September  30,  18SK),  the  Canevaro  company,  through 
its  representative,  Giacometti,  applied  to  the  Senate  for  payment  of 
the  43,140  pounds  sterling  which  had,  according  to  it,  been  fur- 
nished to  meet  the  needs  of  the  war; 

Whereas,  on  April  9,  1891,  in  a letter  addressed  to  the  President 
of  the  Tribunal  of  Accounts,  Giacometti  assigned  a triple  origin  to 
the  debt : a balance  due  the  Canevaro  firm  from  the  Government  in 
payment  of  armaments  bought  in  Europe  during  the  war;  drafts 
drawn  by  the  Government  against  a consignment  of  guano  to  the 
United  States,  protested  and  then  paid  by  Jose  Francisco  Canevaro; 
money  furnished  for  the  army  by  General  Canevaro; 

Whereas,  also,  on  April  1,  1891,  the  said  Giacometti,  addressing 
the  President  of  the  Tribunal  of  Accounts,  had  invoked  Article 
14  of  the  law  of  June  12,  1889,  which  he  said  Congress  had  passed 
“for  the  most  patriotic  purposes,”  in  order  to  obtain  a settlement  of 
the  debt; 

Whereas,  the  representative  of  the  Canevaro  firm  had  at  first 
assigned  a manifestly  erroneous  origin  to  the  debt,  it  having  by  no 
means  been  a question  of  sup>plies  furnished  or  advances  made  in 
view  of  the  war  against  Chile,  but,  as  was  recognized  later  on,  solely 
a question  of  the  repayment  of  previous  drafts  which,  drawn  by  the 
Peruvian  Government,  had  been  protested  and  then  paid  by  the 
Canevaro  firm; 

Whereas,  this  is  the  standpoint  from  which  the  matter 
should  be  examined. 


THE  CANEVARO  CASE 


289 


Whereas,  the  Canevaro  firm  acknowledged  in  1890  and  1891  that 
it  was  subject  to  the  law  on  domestic  debt,  and  merely  sought  to 
place  itself  in  a position  to  take  advantage  of  a favorable  provision 
of  this  law  instead  of  submitting  to  the  common  fate  of  the  cred- 
itors ; 

Whereas,  its  claim  does  not  come  within  the  provisions  of  Article 
14  of  said  law,  which  it  invoked,  as  above  stated ; and  whereas,  this 
case  is  not  a question  of  a deposit  received  by  the  Government,  nor 
of  bills  of  exchange  drawn  upon  the  Government,  accepted  by  it, 
and  acknowledged  to  be  lawful  by  the  “present”  Government,  but 
6f  an  operation  connected  with  accounts,  being  not  for  the  purpose 
of  procuring  resources  for  the  Government,  but  for  the  purpose  of 
settling  a previous  debt ; 

Whereas,  the  Canevaro  claim  does,  on  the  contrary,  come  within 
the  very  comprehensive  terms  of  Article  1,  No.  4,  of  the  law  which 
mentions  pay  orders  (libramientos) , bonds  (tons),  checks,  bills  and 
other  money  orders  issued  by  the  national  bureaus  up  to  Jamiary, 
i88o;  and  whereas,  we  may,  as  a matter  of  fact,  offer  the  objection 
that  this  phrase  [up  to  January,  1880']  would  seem  to  exclude  the 
Canevaro  claim,  which  is  of  December  23,  1880;  nevertheless  it  is 
important  to  remark  that  this  limitation  as  to  date  was  for  the  pur- 
pose of  excluding  claims  arising  from  acts  of  the  dictator  Pierola,  in 
accordance  with  the  law  of  1886,  which  declared  all  acts  of  the  lat- 
ter void;  and  whereas,  thus  construing  literally  the  provision  in 
question,  the  Canevaro  claim  could  not  be  invoked  on  any  score, 
even  to  obtain  the  slight  portion  allowed  by  the  law  of  1889; 

But  whereas,  on  the  one  hand,  it  appears  from  the  circumstances 
and  from  the  terms  of  the  compromis  that  the  Peruvian  Government 
itself  acknowledges  that  the  annulment  prescribed  by  the  law  of 
1886  does  not  apply  to  the  Canevaro  claim;  and,  on  the  other  hand, 
that  the  annulment  prescribed  by  the  Pierola  decree  would  leave  in- 
tact the  previous  claim  arising  from  the  payment  of  the  drafts; 

And  that  thus  the  claim  arising  from  the  bonds  of  1880,  delivered 
to  the  Canevaro  firm,  must  be  considered  as  coming  within  the 
category  of  the  evidences  of  indebtedness  enumerated  in  Article  1, 
No.  4,  of  the  law; 

And  whereas,  it  has  been  held,  in  a general  way,  that  the  law  of 
1889  ought  not  to  apply  to  the  Canevaro  claim,  and  that  the  claim 


290 


THE  HAGUE  COURT  REPORTS 


ought  not  to  be  considered  as  falling  within  the  domestic  debt,  since 
its  very  characteristics  precluded  this,  the  certificates  of  indebtedness 
being  to  order,  made  payable  in  pounds  sterling,  and  belonging  to 
Italians ; 

Whereas,  apart  from  the  nationality  of  the  individuals,  it  is  un- 
derstood that  financial  measures  adopted  within  a country  do  not 
affect  transactions  entered  into  abroad  by  means  of  which  the  Gov- 
ernment has  made  a direct  appeal  for  foreign  credit ; this,  however, 
is  not  the  case  here ; in  the  matter  of  the  bills  issued  in  December, 
1880,  we  are  clearly  dealing  with  an  arrangement  of  a domestic 
nature,  with  bills  drawn  in  Lima,  payable  in  Lima,  in  compensation 
for  a payment  made  voluntarily  in  the  interest  of  the  Government 
of  Peru; 

And  this  is  not  impaired  by  the  fact  that  the  evidences  of  indebt- 
edness were  to  order  and  payable  in  pounds  sterling,  wjjich  fact 
did  not  prevent  the  Peruvian  law  from  being  applicable  to  the  debt 
created  and  payable  in  the  territory  in  which  the  said  law  prevailed ; 

Whereas,  the  enumeration  contained  in  Article  1,  No.  4,  as  re- 
ferred to  above,  comprises  evidences  of  indebtedness  payable  to 
order,  and  Article  5 foresees  that  conversions  of  money  may  be 
necessary ; 

Wliereas,  finally,  as  has  been  stated  before,  when  the  financial 
measures  which  gave  rise  to  the  claim  were  taken,  the  claim  be- 
longed to  a company  which  was  incontestably  Peruvian ; 

And  whereas,  the  claim  of  1880  belongs  at  present  to  three  Cane- 
varo  brothers,  two  of  whom  are  certainly  Italians; 

Whereas,  it  is  justifiable  to  question  whether  or  not  this  circum- 
stance renders  the  law  of  1889  inapplicable; 

And  whereas,  it  is  unnecessary  for  the  tribunal  to  consider  the 
claim  as  one  belonging  to  Italians  at  the  time  of  the  enactment  of 
the  law  which  reduced  to  such  an  extent  the  rights  of  Peruvian 
creditors,  or  to  consider  whether  the  same  sacrifices  could  be  im- 
posed upon  foreigners  as  upon  natives ; 

But  whereas,  at  present  it  is  solely  a question  of  ascertaining 
whether  a position  in  which  natives  are  placed,  and  from  which  for 
them  there  is  no  escape,  is  radically  modified  when,  in  one  way  or 
another,  foreigners  are  substituted  for  them ; 


THE  CANEVARO  CASE 


291 


And  whereas,  such  a modification  could  not  easily  be  admitted, 
since  it  would  be  contrary  to  the  plain  proposition  that  an  assignee 
has  no  greater  rights  than  the  assignor; 

And  whereas,  the  Canevaro  brothers  appear  as  holding  the  dis- 
puted evidences  of  indebtedness  by  virtue  of  an  indorsement; 

And  whereas,  there  is  invoked  in  their  behalf  the  ordinary  effect 
of  indorsement,  which  is  to  make  the  bearer  of  a note  to  order  the 
direct  creditor  of  the  debtor,  enabling  him  to  reject  any  exceptions 
which  might  be  made  against  his  indorser; 

And  whereas,  if  we  reject  the  theory  that,  outside  of  negotiable 
paper,  indorsement  is  a purely  civil  conveyance,  then  we  must,  in 
this  instance,  refuse  to  admit  the  effect  of  indorsement ; 

And  while,  in  reality,  the  date  of  the  indorsement  of  the  evidences 
of  indebtedness  of  1880  is  not  known,  it  is  an  indisputable  fact  that 
this  indorsement  occurred  long  after  the  paper  became  due;  and 
there  is  fherefore  ground  for  applying  the  provision  of  the  Peruvian 
Code  of  Commerce  of  1902  (Article  436),  according  to  which  in- 
dorsement subsequent  to  maturity  has  only  the  force  of  an  ordinary 
conveyance ; 

And  whereas,  moreover,  the  rule  invoked  above  in  regard  to  the 
effect  of  indorsement  does  not  prevent  making  exceptions  against 
the  bearer,  drawn  from  the  very  nature  of  the  paper,  which  he  knew 
or  ought  to  have  known; 

And  whereas,  it  is  useless  to  remark  that  the  Canevaro  brothers 
knew  perfectly  well  the  character  of  the  papers  indorsed  in  their 
behalf ; 

And  whereas,  while  the  Canevaro  brothers  can  not,  as  possessors 
of  the  claim  by  virtue  of  an  indorsement,  accjuire  a more  favorable 
status  than  that  of  the  company  from  which  they  derived  their 
rights,  it  is  a question  whether  their  status  should  not  be  different 
if  they  are  regarded  as  heirs  of  Jose  Francisco  Canevaro,  which 
they  appear  to  be  in  a notarial  declaration  of  February  6,  1905 ; 

Whereas,  as  a matter  of  fact,  there  is  this  difference  between  a 
conveyance  and  an  inheritance : in  the  latter  case,  the  claim  has  not 
passed  from  one  person  to  another  by  an  act  of  pure  will ; 

Whereas,  nevertheless,  no  decisive  reason  is  found  for  admitting 
that  the  situation  has  changed  by  virtue  of  the  fact  that  Italians 
succeeded  a Peruvian  and  that  the  heirs  have  a new  title  which  en- 


292 


THE  HAGUE  COURT  REPORTS 


ables  them  to  avail  themselves  of  the  claim  under  more  favorable 
conditions  than  the  de  cujus; 

Whereas,  it  is  a general  rule  that  heirs  receive  property  subject  to 
the  same  conditions  as  obtained  when  it  was  in  the  possession  of  the 
deceased ; 

Whereas,  it  has  been  maintained  that  the  Peruvian  law  of  1889 
on  domestic  debt,  did  not  modify  the  obligations  existing  against 
Peru,  but  only  gave  to  the  administration  the  authority  to  pay  its 
debts  in  a certain  manner  when  the  creditors  demanded  payment 
thereof,  and  that  it  is  to  the  moment  when  payment  is  demanded  that 
we  should  look  in  order  to  ascertain  whether  the  exceptions  specified 
in  the  law  may  be  invoked  against  all  persons,  and  especially  against 
foreigners ; 

Whereas,  as  the  present  owners  of  the  claim  are  Italians,  it  would 
be  proper  for  the  tribunal  to  pass  on  the  question  whether  the  Peru- 
vian law  of  1889  may,  in  spite  of  its  exceptional  character,  be  im- 
posed upon  foreigners; 

But  whereas,  this  view  appears  at  variance  with  the  general  terms 
and  spirit  of  the  law  of  1889; 

Whereas,  Congress,  whose  acts  are  not  here  under  examination, 
intended  to  settle  entirely  the  financial  situation  of  Peru,  and  sub- 
stitute the  bonds  which  it  issued  for  the  old  bonds ; 

Whereas,  this  situation  is  not  altered  because  some  creditors  apply 
earlier  than  others  for  the  settlement  of  their  claims; 

Whereas,  this  was  the  situation  with  regard  to  the  Canevaro  firm, 
which  was  Peruvian  when  the  law  of  1889  went  into  effect; 

And  whereas,  for  the  reasons  already  set  forth,  this  situation  has 
not  been  changed  in  law  by  the  fact  that  the  claim  has  passed  into 
the  hands  of  Italians  by  indorsement  or  by  inheritance ; 

And  whereas,  finally,  the  allegation  that  the  Peruvian  Govern- 
ment should  indemnify  the  claimants  for  the  damages  occasioned 
them  by  its  delay  in  discharging  the  debt  of  1880,  and  that  the 
damage  is  measured  by  the  difference  between  payment  in  gold  and 
payment  in  bonds  of  the  consolidated  debt ; and  that  thus  the  Peru- 
vian Government  would  be  bound  to  pay  in  gold  the  sum  claimed, 
even  though  it  be  admitted  that  the  law  of  1889  was  properly  applied 
to  the  indebtedness ; 


THE  CANEVARO  CASE 


293 


And  whereas,  the  tribunal  considers  that  in  following  this  line  of 
reasoning  it  would  be  departing  from  the  terms  of  the  compromis, 
which  stipulates  that  it  shall  decide  only  whether  the  Peruvian  Gov- 
ernment should  pay  in  cash  or  in  accordance  with  the  provisions  of 
the  Peruvian  law  of  June  12,  1889; 

And  whereas,  since  the  tribunal  has  admitted  the  latter  alternative, 
the  former  solution  should  be  excluded; 

And  whereas,  further,  the  tribunal  is  not  charged  with  decid- 
ing what  responsibility  the  Peruvian  Government  may  have  in- 
curred on  any  other  score,  and  with  inquiring  as  to  whether  the 
delay  in  payment  may  or  may  not  be  condoned  because  of  the  try- 
ing circumstances  in  which  Peru  was  placed,  especially  in  view  of 
the  fact  that  the  question  would,  in  reality,  be  one  as  to  the  responsi- 
bility incurred  toward  a Peruvian  firm,  the  creditor  when  the  delay 
occurred ; 

And  whereas,  it  is  proper  to  estimate  the  amount  of  the  Canevaro 
claim  at  the  time  the  law  of  1889  went  into  effect; 

Whereas,  it  was  composed  primarily  of  the  principal,  amounting 
to  43,140  pounds  sterling,  to  which  must  be  added  the  interest  which 
had  accrued  up  to  that  time; 

Whereas,  the  interest,  which,  according  to  the  decree  of  Decem- 
ber 23,  1880,  was  four  per  cent  per  annum  up  to  the  respective  ma- 
turities of  the  bonds  delivered  (delivres)  and  which  was  included  in 
the  amount  of  these  bonds,  should  be  calculated  from  the  said 
maturity  dates  at  the  legal  rate  of  six  per  cent  (Article  1274  of  the 
Peruvian  Civil  Code)  up  to  January  1,  1889; 

Whereas,  we  thus  obtain  the  sum  of  16,577  pounds,  2 shillings,  2 
pence  sterling,  which  must  be  added  to  the  principal  in  order  to 
make  up  the  total  amoimt  to  be  repaid  in  certificates  of  the  consoli- 
dated debt,  yielding  one  per  cent  interest,  payable  in  gold,  from 
January  1,  1889,  until  final  payment; 

And  whereas,  according  to  the  above  decision  in  regard  to  the 
status  of  Rafael  Canevaro,  the  tribunal  is  to  pass  judgment  only  in 
regard  to  his  two  brothers ; 

And  whereas,  it  is  the  duty  of  the  tribunal  to  regulate  the  mode 
of  executing  the  award: 

Therefore, 


294 


THE  HAGUE  COURT  REPORTS 


The  arbitral  tribunal  decides  that  the  Peruvian  Government  shall, 
on  July  31,  1912,  deliver  to  the  Italian  Legation  at  Lima,  on  account 
of  the  brothers  Napoleon  and  Carlos  Canevaro: 

1.  In  one  per  cent  bonds  of  the  domestic  debt  of  1889,  the  nom- 
inal amount  of  39,811  pounds,  8 shillings,  1 penny  sterling  upon  the 
surrender  of  two-thirds  of  the  bonds  issued  on  December  23,  1880, 
to  the  firm  of  Jose  Canevaro  & Sons; 

2.  In  gold,  the  sum  of  9,388  pounds,  17  shillings,  1 penny  ster- 
ling, the  amount  of  interest  at  one  per  cent  from  January  1,  1889, 
to  July  31,  1912. 

The  Peruvian  Government  may  delay  payment  of  this  latter  sum 
until  January  1,  1913,  provided  it  pays  interest  thereon  at  the  rate 
of  six  per  cent  from  August  1,  1912. 

Done  at  The  Hague,  in  the  palace  of  the  Permanent  Court  of 
Arbitration,  on  May  3,  1912. 

Louis  Renault,  President 

Michiels  van  Verduynen,  Secretary  General 


AGREEMENT  FOR  ARBITRATION 

Protocol  between  Italy  and  Peru  for  the  arbitration  of  the  Canevaro 
claim. — Signed  at  Lima,  April  ipio.^ 

Dr.  Don  Meliton  F.  Porras,  Minister  of  Foreign  Relations  of  Peru, 
and  Count  Giulio  Bolognesi,  Charge  d’Affaires  of  Italy,  having  met  at 
the  office  of  the  former,  have  agreed  upon  the  following: 

The  Government  of  the  Peruvian  Republic,  and  the  Government  of 
His  Majesty,  the  King  of  Italy,  not  having  succeeded  in  reaching  an 
agreement  in  regard  to  the  claim  presented  by  the  latter  on  behalf  of 
Count  Napoleon,  Carlos  and  Rafael  Canevaro,  for  the  payment  of  the 
sum  of  forty-three  thousand,  one  hundred  and  forty  pounds  sterling 
and  the  legal  interest  thereon,  which  they  demand  from  the  Govern- 
ment of  Peru, 

Have  resolved,  in  accordance  with  Article  1 of  the  general  treaty  of 
arbitration  in  force  between  the  two  countries,  to  submit  this  con- 
troversy to  the  Permanent  Court  of  Arbitration  at  The  Hague,  which 
Court  shall  decide  in  accordance  with  law  the  following  points : 


^American  Journal  of  International  Law,  vol.  6,  Supplement,  p.  212.  For 
the  original  Italian  and  Spanish  texts,  see  Appendix,  p.  528. 


THE  CANEVARO  CASE 


295 


Should  the  Government  of  Peru  pay  in  cash,  or  in  accordance  with 
the  Peruvian  law  of  June  12,  1889,  on  the  domestic  debt,  the  bills  of 
exchange  (libramientos)  now  in  the  possession  of  the  brothers  Napo- 
leon, Carlos  and  Rafael  Canevaro  which  were  drawn  by  the  Peruvian 
Government  to  the  order  of  the  firm  of  Jose  Canevaro  and  Sons  for 
the  sum  of  43,140  pounds  sterling,  plus  the  legal  interest  on  the  said 
amount? 

Have  the  Canevaro  brothers  a right  to  demand  the  total  amount 
claimed  ? 

Has  Don  Rafael  Canevaro  a right  to  be  considered  as  an  Italian 
claimant  ? 

The  Government  of  the  Republic  of  Peru  and  the  Government  of 
His  Majesty,  the  King  of  Italy,  pledge  themselves  to  designate,  within 
four  months  from  the  date  of  this  protocol,  the  members  who  are  to 
constitute  the  arbitral  tribunal. 

Seven  months  after  said  arbitral  tribunal  has  been  organized,  both 
Governments  shall  submit  to  the  same  a complete  statement  of  the  con- 
troversy, together  with  all  the  documents,  evidence,  briefs  and  argu- 
ments in  the  case,  each  Government  being  entitled  to  a period  of  five 
months  in  order  to  file  its  answer  to  the  other  Government,  and  in  said 
answer  they  shall  only  be  allowed  to  refer  to  the  allegations  contained 
in  the  statement  of  the  other  side. 

The  controversy  shall  then  be  deemed  closed,  unless  the  arbitral 
tribunal  should  require  new  documents,  proofs,  or  briefs,  in  which 
case  they  must  be  presented  within  the  term  of  four  months  from  the 
time  the  arbitrator  should  demand  the  presentation  of  the  same. 

Should  said  documents,  proofs  or  briefs  not  be  presented  within 
this  period,  an  arbitral  sentence  shall  be  passed  as  if  the  same  did 
not  exist. 

In  witness  whereof  the  undersigned  put  their  names  to  the  present 
protocol,  drawn  in  Spanish  and  Italian,  affixing  their  respective  seals 
thereon. 

Done  in  duplicate  in  Lima,  the  25th  day  of  April,  1910. 

(L.  S.)  M.  F.  PORRAS 
(L.  S.)  Giulio  Bolognesi 


296 


THE  HAGUE  COURT  REPORTS 


ADDITIONAL  DOCUMENTS 
Notes  Concerning  the  Formation  of  the  Arbitral  Tribunal 

Ministry  of  Foreign  Affairs, 
Lima,  April  zy,  igio. 

Sir:  There  being  no  stipulation  in  the  protocol  submitting  to  arbitra- 
tion the  claim  presented  against  the  Peruvian  Government  by  the 
brothers  Canevaro,  in  regard  to  the  formation  of  the  arbitral  tribunal, 
it  is  a pleasure  to  me  to  propose  to  your  Excellency  that  the  same 
be  made  in  accordance  with  Article  87  of  the  Convention  for  the 
pacific  settlement  of  international  disputes,  signed  at  The  Hague  in 
1907. 

I reiterate  to  your  Excellency  the  assurances  of  my  highest  con- 
sideration. 

M.  F.  Porras 

To  Count  Giulio  Bolognesi, 

Charge  d’ Affaires  of  Italy. 

Legation  of  His  Majesty,  the  King  of  Italy, 

Lima,  April  zy,  igio. 

Mr.  Minister:  I have  the  honor  to  acknowledge  receipt  of  the 
note  of  your  Excellency  No.  18,  of  this  date,  and  I am  highly  pleased 
to  accept  the  proposal  of  your  Excellency  providing  for  the  formation 
of  the  arbitral  tribunal  at  The  Hague  to  pass  upon  the  Canevaro  con- 
troversy, in  accordance  with  the  provisions  of  Article  87  of  the  Con- 
vention for  the  pacific  settlement  of  international  disputes  signed  at 
The  Hague  in  1907. 

Be  pleased,  Mr.  Minister,  to  accept  the  assurances  of  my  highest 
and  distinguished  consideration. 

Giulio  Bolognesi 

To  His  Excellency, 

Dr.  Meliton  F.  Porras, 

Minister  of  Foreign  Relations. 


^American  Journal  of  International  Law,  vol  6.  Supplement,  p.  214.  For 
the  original  Spanish  text,  see  Appendix,  p.  530. 


THE  RUSSIAN  INDEMNITY  CASE 

between 

RUSSIA  and  TURKEY 
Decided  November  1 1,  1912 
Syllabus 

Article  5 of  the  treaty  of  Constantinople,  concluded  January  27/ 
February  8,  1879,  between  Russia  and  Turkey,  which  ended  the  war 
of  1877-78  between  those  two  countries,  stipulated  that  “the  claims 
of  Russian  subjects  and  institutions  in  Turkey  for  indemnity  on  ac- 
count of  damages  sustained  during  the  war  shall  be  paid  as  soon  as 
they  are  examined  by  the  Russian  Embassy  at  Constantinople  and 
transmitted  to  the  Sublime  Porte.” 

The  claims  were  duly  examined  by  the  Embassy  and  presented  to 
the  Turkish  Government,  but  payments  were  delayed  and  only  made 
under  constant  pressure  from  the  Russian  Government. 

The  claims  amounted  in  all  to  6,186,543  francs,  of  which  sum  50,000 
Turkish  pounds  were  paid  in  1884,  50,000  in  1889,  75,000  in  1893, 
50,000  in  1894,  and  a trifle  over  42,438  in  1902,  leaving  a balance  of 
1,539  Turkish  pounds,  which  the  Turkish  Government  deposited  in 
the  Ottoman  Bank  to  the  credit  of  Russia,  but  which  the  latter  re- 
fused to  receive  on  the  ground  that  payment  of  the  interest  which 
Russia  claimed  for  the  delayed  payments  had  not  been  made.  The 
controversy  over  this  interest  was  submitted  by  a compromis  signed 
at  Constantinople  July  22/August  4,  1910,^  to  the  arbitration  of  a 
tribunal  composed  of  the  following:  Charles  Bdouard  Lardy,  of 
Switzerland;  Baron  Michel  de  Taube  and  Andre  Mandelstam,  of 
Russia,  and  Herante  Abro  Bey  and  Ahmed  Rechid  Bey,  of  Turkey. 
Of  these  members,  only  two,  viz..  Lardy  and  de  Taube,  were  selected 
from  the  panel  of  the  Permanent  Court.  The  sessions  began  February 
15,  1911,  and  ended  November  6,  1912,  the  decision  being  rendered 
November  11,  1912. 

On  a preliminary  question  raised  by  Turkey — that  the  claims  were 
due  to  certain  specified  subjects  of  Russia  and  not  to  the  Russian 
Government,  and  that  therefore  Russia  as  such  had  no  standing  in  the 
court — ^the  tribunal  found  that  the  treaty  was  made  with  Russia  for 
the  benefit  of  its  subjects,  and  rejected  the  Turkish  contention. 

On  the  main  question  the  tribunal  decided  that  Turkey  was  respon- 
sible in  the  same  manner  as  a private  debtor  for  the  payment  of  inter- 
est, but  was  only  responsible  after  demand  had  been  made  for  the 
payment  of  the  principal  and  interest  upon  such  principal.  The  tri- 


^Post,  p.  324. 


298 


THE  HAGUE  COURT  REPORTS 


hunal  found  that  Russia  had  made  such  a demand  in  proper  form  on 
December  31,  1890/January  12,  1891,  but  that  subsequently  the  Rus- 
sian Government,  through  its  Embassy  at  Constantinople,  repeatedly 
agreed  to  accept  the  balance  as  stated  by  Turkey,  in  which  no  interest 
was  included.  The  tribunal  considered  this  to  be  a renunciation  of 
the  claim  for  interest,  and  held  that,  after  the  principal  had  been  paid 
in  full  to  Russia  or  placed  at  its  disposal,  the  Russian  Government 
was,  by  the  interpretation  which  had  been  accepted  and  practiced  in 
its  name  by  its  Embassy,  estopped  from  reopening  the  question. 


AWARD  OF  THE  TRIBUNAL 

Award  of  tJi€  arbitral  tribunal  constituted  by  virtue  of  the  arbitra- 
tion agreement  signed  at  Constantinople  between  Russia  and  Tur- 
key, July  22/ August  4,  igio. — The  Hague,  November  ii,  ipi2j 

By  a compromis  signed  at  Constantinople,  July  22/August  4, 
1910,*  the  Imperial  Government  of  Russia  and  the  Imperial  Otto- 
man Government  agreed  to  submit  to  an  arbitral  tribunal  the  final 
decision  of  the  following  questions : 

I.  Whether  or  not  the  Imperial  Ottoman  Government  must  pay 
the  Russian  claimants  interest-damages  by  reason  of  the  dates  on 
which  the  said  Government  made  payment  of  the  indemnities  de- 
termined in  pursuance  of  Article  5 of  the  Treaty  of  January  27/ 
February  8,  1879,  as  well  as  of  the  protocol  of  the  same  date? 

II.  In  case  the  first  question  is  decided  in  the  affirmative,  what 
should  be  the  amount  of  these  interest-damages? 

The  arbitral  tribunal  was  composed  of : 

His  Excellency  Monsieur  Lardy,  Doctor  of  Laws,  member  and 
former  president  of  the  Institute  of  International  Law,  Envoy  Ex- 
traordinary and  Minister  Plenipotentiary  of  Switzerland  at  Paris, 
member  of  the  Permanent  Court  of  Arbitration,  umpire ; 

His  Excellency  Baron  Michel  de  Taube,  Assistant  Minister  of 
Public  Instruction  of  Russia,  Councilor  of  State,  Doctor  of  Laws, 
associate  of  the  Institute  of  International  Law,  member  of  the  Per- 
manent Court  of  Arbitration; 

^American  Journal  of  International  Law,  vol.  7.,  p.  178.  For  the  original 
French  text,  see  Appendix,  p.  532. 

^Post,  p.  324. 


THE  RUSSIAN  INDEMNITY  CASE 


299 


Mr.  Andre  Mandelstam,  First  Dragoman  of  the  Imperial  Em- 
bassy of  Russia  at  Constantinople,  Councilor  of  State,  Doctor 
of  International  Law,  associate  of  the  Institute  of  International 
Law; 

Herante  Abro  Bey,  Licentiate  in  Law,  Legal  Counselor  of  the 
Sublime  Porte;  and 

Ahmed  Rechid  Bey,  Licentiate  in  Law,  Legal  Counselor  of  the 
Sublime  Porte. 

Mr.  Henri  Fromageot,  Doctor  of  Laws,  associate  of  the  Insti- 
tute of  International  Law,  advocate  in  the  Court  of  Appeals  of 
Paris,  acted  as  agent  of  the  Imperial  Russian  Government  and  was 
assisted  by 

Mr.  Francis  Rey,  Doctor  of  Laws,  Secretary  of  the  European 
Commission  of  the  Danube,  in  the  capacity  of  secretary; 

Mr.  Edouard  Clunet,  advocate  in  the  Court  of  Appeals  of 
Paris,  member  and  former  president  of  the  Institute  of  International 
Law,  acted  as  agent  of  the  Imperial  Ottoman  Government  and  was 
assisted  by 

Mr.  Ernest  Roguin,  professor  of  comparative  legislation  in  the 
University  of  Lausanne,  member  of  the  Institute  of  International 
Law,  in  the  capacity  of  counsel  to  the  Ottoman  Government ; 

Mr.  Andre  Hesse,  Doctor  of  Laws,  advocate  in  the  Court  of  Ap- 
peals of  Paris,  in  the  capacity  of  counsel  to  the  Ottoman  Govern- 
ment; 

Youssouf  Kemal  Bey,  professor  in  the  Faculty  of  Law  of  Con- 
stantinople, former  deputy,  director  of  the  Ottoman  Commission 
of  Juridical  Studies;  in  the  capacity  of  counsel  to  the  Ottoman  Gov- 
ernment ; 

Mr.  C.  Campinchi,  Advocate  in  the  Court  of  Appeals  of  Paris,  in 
the  capacity  of  secretary  to  the  agent  of  the  Ottoman  Government; 

Baron  Michiels  van  Verduynen,  secretary  general  of  the  Inter- 
national Bureau  of  the  Permanent  Court  of  Arbitration,  acted  as 
secretary  general,  and 

Jonkheer  W.  Roell,  first  secretary  of  the  International  Bureau  of 
the  Court,  attended  to  the  secretariat. 

After  a first  session  at  The  Hague  on  February  15,  1911,  to  ar- 
range certain  questions  of  procedure,  the  cases  and  counter-cases 
were  duly  exchanged  by  the  parties  and  communicated  to  the  arbi- 


300 


THE  HAGUE  COURT  REPORTS 


trators,  who  declared  respectively,  as  well  as  the  agents  of  the  par- 
ties, that  they  waived  the  right  to  ask  for  further  information. 

The  arbitral  tribunal  met  again  at  The  Hague  on  October  28,  29, 
30,  31,  November  2,  5,  and  6,  1912,  and  after  having  heard  the  oral 
arguments  of  the  agents  and  counsel  of  the  parties,  made  the  follow- 
ing award: 

Preliminary  Question 

In  view  of  the  preliminary  request  of  the  Imperial  Ottoman  Gov- 
ernment that  the  claim  of  the  Imperial  Russian  Government  be 
declared  inadmissible  without  examining  the  principal  question,  the 
tribunal,  considering  that  the  Imperial  Ottoman  Government  bases 
this  preliminary  request,  in  its  written  demands,  upon  the  fact 

That  the  direct  creditors  for  the  principal  sums  adjudged  to 
them  were  the  Russian  subjects  individually,  benefiting  by  a 
stipulation  made  in  their  names,  either  in  the  preliminaries  of 
peace  signed  at  San  Stefano,  February  19/March  3,  1878,  or 
by  Article  5 of  the  treaty  of  Constantinople  of  January  27/ 
February  8,  1879,  or  by  the  protocol  of  the  same  date,  and  that 
their  titles  in  this  respect  were  established  by  the  designative 
decisions  of  the  commission  ad  hoc  which  met  at  the  Russian 
Embassy  at  Constantinople,  which  decisions  were  communi- 
cated to  the  Sublime  Porte; 

That,  under  these  circumstances,  the  Imperial  Russian  Gov- 
ernment should  have  proved  the  survival  of  the  rights  of  each 
claimant  and  the  identity  of  the  persons  entitled  at  the  present 
time  to  avail  themselves  of  these  rights,  especially  since  the 
transfer  of  certain  of  these  rights  has  been  reported  to  the  Im- 
perial Ottoman  Government ; 

That,  even  admitting  that  the  Russian  State  was  the  only 
direct  creditor  as  to  the  indemnities,  the  Imperial  Russian  Gov- 
ernment should  have,  nevertheless,  made  such  proof,  inasmuch 
as  the  said  Government  could  not  deny  its  duty  to  transmit  to 
the  claimants  or  their  assigns  the  sums  which  it  might  obtain 
in  the  present  suit  as  morator}'  interest-damages,  the  claimants 
appearing,  upon  this  supposition,  as  beneficiaries  of  the  stipula- 
tion made  in  their  interest,  if  not  as  creditors. 

That,  however,  the  Imperial  Russian  Government  furnished 
no  proof  as  to  the  identity  of  the  claimants  or  of  their  assigns. 


THE  RUSSIAN  INDEMNITY  CASE 


301 


or  as  to  the  survival  of  their  claims  ( Counter- reply  of  Turkey, 
pp.  81  and  82) ; 

Considering  that  the  Imperial  Russian  Government  maintains,  on 
the  contrary,  in  its  written  demands 

That  the  debt  specified  in  the  treaty  of  1879  is,  none  the  less, 
a debt  of  State  to  State ; that  it  could  not  be  otherwise  as  to  the 
responsibility  resulting  from  the  failure  to  pay  the  said  debt; 
that  consequently  the  Imperial  Russian  Government  alone  is 
qualified  to  receipt  for  it,  and  for  that  reason  to  receive  the 
sums  to  be  paid  to  the  claimants ; that,  moreover,  the  Imperial 
Ottoman  Government  does  not  dispute  the  Russian  Govern- 
ment’s title  of  direct  creditor  of  the  Sublime  Porte; 

That  the  Imperial  Russian  Government  is  acting  by  virtue 
of  a right  which  it  possesses  in  claiming  the  interest-damages 
on  account  of  the  non-fulfilment  of  an  engagement  made  with 
it  directly ; 

That  it  fully  proves  its  rights  by  establishing  the  non-fulfil- 
ment of  this  engagement,  which,  moreover,  is  not  disputed,  and 
by  presenting  its  title,  which  is  the  treaty  of  1879  . . . ; 

That  the  Sublime  Porte,  provided  with  the  receipt  regularly 
delivered  to  it  by  the  Imperial  Russian  Government  has  no  con- 
cern in  the  allotment  of  the  sums  distributed  or  to  be  distrib- 
uted by  the  said  Government  among  its  subjects  entitled  to 
indemnity;  that  this  is  a question  of  a domestic  nature  with 
which  the  Imperial  Ottoman  Government  has  nothing  to  do 
(Reply  of  Russia,  pp.  49  and  50) ; 

Considering  that  the  origin  of  the  claim  goes  back  to  a war  and 
an  international  fact  in  the  first  degree ; that  the  source  of  the  indem- 
nity is  not  only  an  international  treaty  but  a treaty  of  peace  and  the 
agreements  made  with  a view  to  the  execution  of  this  treaty  of 
peace;  that  this  treaty  and  these  agreements  were  between  Russia 
and  Turkey,  settling  between  themselves.  State  to  State,  as  public 
and  sovereign  Powers,  a question  of  international  law ; that  the  pre- 
liminaries of  peace  included  in  the  indemnities  “which  His  Majesty 
the  Emperor  of  Russia  claims  that  the  Sublime  Porte  bound  itself 
to  pay  to  him”  the  ten  million  roubles  allowed  as  damages  and  in- 
terest to  Russian  subjects  who  were  victims  of  the  war  in  Turkey; 
that  this  condition  of  debt  from  State  to  State  has  been  confirmed 


302 


THE  HAGUE  COURT  REPORTS 


by  the  fact  that  the  claims  were  to  be  examined  by  a purely  Russian 
commission ; that  the  Imperial  Russian  Government  has  full  author- 
ity in  the  matter  of  conferring,  collecting  and  distributing  the  in- 
demnities, in  its  capacity  as  sole  creditor;  that  whether,  in  theory, 
Russia  has  acted  by  virtue  of  its  right  to  protect  its  nationals  or  by 
some  other  right  is  a matter  of  little  moment,  since  it  is  with  the 
Imperial  Russian  Government  alone  that  the  Sublime  Porte  entered 
into  or  undertook  the  engagement  the  fulfilment  of  which  is  de- 
manded ; 

Considering  that  the  fulfilment  of  engagements  between  States, 
as  between  individuals,  is  the  surest  commentary  on  the  effective- 
ness of  these  engagements; 

That,  upon  the  attempt  of  the  Ottoman  financial  department  in 
1885  to  impose  the  proportional  stamp-tax  required  from  individ- 
uals by  the  Ottoman  laws,  upon  a receipt  given  by  the  Russian  Em- 
bassy at  Constantinople  for  a payment  on  account,  Russia  immedi- 
ately protested  and  maintained  “that  the  debt  was  one  contracted 
by  the  Ottoman  to  the  Russian  Government’’  . . . and  “not  a simple 
debt  between  individuals  arising  from  a private  engagement  or  con- 
tract” (Russian  note  of  March  15/27,  1885,  Russian  memorandum, 
apf>endix  No.  19,  p.  19) ; that  the  Sublime  Porte  did  not  insist,  and 
that  in  fact  the  two  parties  have  constantly  acted  in  practice,  for 
more  than  fifteen  years,  as  if  Russia  was  the  creditor  of  Turkey  and 
not  of  private  claimants; 

That  the  Sublime  Porte  has  made,  without  a single  exception,  all 
the  successive  payments  upon  the  receipt  alone  of  the  Russian  Em- 
bassy at  Constantinople,  acting  in  behalf  of  its  Government; 

That  the  Sublime  Porte  has  never  asked,  upon  payments  on  ac- 
count, if  the  beneficiaries  were  still  living  or  who  were  their  assigns 
at  the  time,  or  according  to  what  method  the  payments  on  account 
were  divided  among  them,  leaving  this  duty  entirely  to  the  Imperial 
Russian  Government; 

Considering  that  the  Sublime  Porte  contends,  in  the  main,  in  the 
present  litigation,  that  it  is  fully  released  by  the  payments  which 
it  has,  in  fact,  made  to  the  Imperial  Russian  Government  alone  rep- 
resented by  its  Embassy,  without  the  participation  of  the  claimants ; 

For  these  reasons  decides  that 

The  preliminary  request  is  set  aside. 


THE  RUSSIAN  INDEMNITY  CASE 


303 


Passing  then  upon  the  main  question,  the  arbitral  tribunal  ren- 
ders the  following  decision: 


I 

In  the  Matter  of  Fact 

The  protocol  signed  at  Adrianople,  January  19/31,  1878,  which 
put  an  end  by  an  armistice  to  hostilities  between  Russia  and  Turkey, 
contains  the  following  stipulation : 

5.  The  Sublime  Porte  engages  to  indemnify  Russia  for  the 
cost  of  the  war  and  the  losses  that  it  has  been  forced  to  suffer. 
The  character  of  this  indemnity,  whether  pecuniary,  territorial 
or  other,  will  be  arranged  later. 

Article  19  of  the  preliminaries  of  peace  signed  at  San  Stefano, 
February  19/March  3,  1878,  is  in  these  terms : 

The  war  indemnities  and  the  losses  suffered  by  Russia  which 
His  Majesty  the  Emperor  of  Russia  claims,  and  which  the 
Sublime  Porte  has  engaged  to  pay  to  him,  consist  of : (a)  900 
million  roubles,  war  expenses;  (b)  400  million  roubles,  dam- 
ages upon  the  southern  coast;  (c)  100  million  roubles,  dam- 
ages in  the  Caucasus;  (d)  ten  million  roubles,  damages  and  in- 
terest to  Russian  subjects  and  institutions  in  Turkey;  total, 
1400  million  roubles. 

And  further  on : 

The  ten  million  roubles  claimed  as  indemnity  for  Russian 
subjects  and  institutions  in  Turkey  shall  be  paid  as  soon  as  the 
claims  of  those  interested  have  been  examined  by  the  Russian 
Embassy  at  Constantinople  and  transmitted  to  the  Sublime 
Porte. 

At  the  Congress  of  Berlin,  at  the  session  of  July  2,  1878,  protocol 
No.  11,  it  was  agreed  that  the  ten  million  roubles  in  question  did 
not  concern  Europe  but  only  the  two  interested  States,  and  that 
they  would  not  be  mentioned  in  the  treaty  between  the  Powers  rep- 
resented at  Berlin.  Consequently  the  question  was  again  taken  up 
directly  between  Russia  and  Turkey,  who  stipulated,  in  the  final 


304 


THE  HAGUE  COURT  REPORTS 


treaty  of  peace  signed  at  Constantinople,  January  27/February  8, 
1879,  as  follows: 

Article  5.  The  claims  of  Russian  subjects  and  institutions  in 
Turkey  for  indemnity  on  account  of  damages  suffered  during 
the  war  will  be  paid  as  soon  as  they  are  examined  by  the  Rus- 
sian Embassy  at  Constantinople  and  transmitted  to  the  Sublime 
Porte. 

The  total  of  these  claims  shall  in  no  case  exceed  26,750,000 
francs. 

Claims  may  be  presented  to  the  Sublime  Porte  beginning 
one  year  from  the  date  on  which  ratifications  are  exchanged, 
and  no  claims  will  be  admitted  which  are  presented  after  the 
expiration  of  two  years  from  that  date. 

The  same  day,  January  27/February  8,  1879,  in  the  protocol  to 
the  treaty  of  peace,  the  Russian  plenipotentiary.  Prince  Lobanow, 
declared  that  the  sum  of  26,750,000  francs  specified  in  Article  5 
constitutes  a maximum  which  the  claims  could  probably  never  reach ; 
he  adds  that  a commission  ad  hoc  will  be  formed  at  the  Russian 
Embassy  to  examine  scrupulously  the  claims  which  are  presented 
to  it,  and  that,  according  to  the  instructions  of  his  Government,  an 
Ottoman  delegate  can  take  part  in  the  examination  of  these  claims. 

Ratifications  of  the  treaty  of  peace  were  exchanged  at  St.  Peters- 
burg, February  9/21,  1879. 

The  commission  established  at  the  Russian  Embassy  and  com- 
posed of  three  Russian  officials  immediately  began  its  labors.  The 
Ottoman  commissioner  generally  abstained  from  taking  part.  The 
total  losses  of  Russian  subjects  was  fixed  by  the  commission  at 
6,186,543  francs.  This  was  communicated  to  the  Sublime  Porte 
between  October  22/November  3,  1880,  and  January  29/February 
10,  1881.  The  sum  was  not  contested  and  the  Russian  Embassy 
made  claim  for  the  payment  at  the  same  time  that  it  transmitted  the 
final  decisions  of  the  commission. 

On  September  23,  1881,  the  Embassy  transmitted  a “petition”  of 
the  lawyer  Rossolato,  "special  attorney  of  several  Russian  subjects” 
who  were  to  receive  indemnities,  which  petition  was  addressed  to 
the  Embassy  and  demanded  that  the  Ottoman  Government  should 
come  to  an  understanding  with  the  Embassy  “within  eight  days 


THE  RUSSIAN  INDEMNITY  CASE 


305 


from  notification,  as  to  the  method  of  payment,”  declaring  that  the 
said  Ottoman  Government  was  “held  now  and  henceforth  respon- 
sible for  all  interest-damages,  especially  the  moratory  interest.” 

By  a convention  signed  at  Constantinople  May  2/14,  1882,  the 
two  Governments  agreed  (Article  1)  that  the  war  indemnity,  the 
amount  of  which  was  fixed  at  802,500,000  francs  by  Article  4 of 
the  treaty  of  peace  of  1879  after  deducting  the  value  of  the  territory 
ceded  by  Turkey,  should  bear  no  interest  and  should  be  paid  in  one 
hundred  annual  instalments  of  350,000  Turkish  pounds,  approxi- 
mately 8,000,000  francs. 

On  June  19/July  1,  1884,  no  sum  having  been  paid  for  the  claim- 
ants, the  embassy  “makes  formal  claim  for  full  payment  of  the 
indemnities  which  were  adjudged  to  Russian  subjects  . . .;  it 

will  be  obliged,  otherwise,  to  acknowledge  their  right  to  claim,  in 
addition  to  the  principal,  interest  proportional  to  the  delay  in  the 
settlement  of  their  claims.” 

On  December  19,  1884,  the  Sublime  Porte  made  a first  payment 
on  account,  of  50,000  Turkish  pounds,  approximately  1,150,000 
francs. 

In  1885  the  union  of  Bulgaria  and  Eastern  Roumelia  occurred,  as 
well  as  the  Serbo-Bulgarian  war.  Turkey  made  no  further  pay- 
ment on  account.  A reminding  note  having  been  sent  in  January, 
1886,  without  result,  the  embassy  insisted,  on  February  15/27,  1887. 
It  transmitted  a “petition”  sent  to  it  by  Russian  claimants,  in  which 
they  hold  the  Ottoman  Government  “responsible  for  this  increase 
of  damages  caused  them  by  the  delay  in  the  payment  of  their  in- 
demnities,” and  the  Embassy  adds:  “Further  postponements  will 

force  the  Imperial  Government  to  make  claim  in  behalf  of  its 
nationals  for  interest  on  account  of  the  delays  in  settling  their 
claims.” 

Reminding  notes  of  July  and  December,  1887,  being  without  ef- 
fect, the  Embassy  complained  on  January  26/February  7,  1888, 
that  Turkey  has  paid  various  debts  incurred  subsequent  to  its  obli- 
gations to  Russian  claimants.  It  recalled  the  fact  that  “the  arrears 
amount  to  the  sum  of  about  215,000  Turkish  pounds,  a single  pay- 
ment of  50,000  Turkish  pounds  having  been  made  out  of  a total 
of  265,000  Turkish  pounds  awarded”;  it  therefore  requested  “ur- 
gently . . . that  the  sums  due  Russian  subjects  be  immediately. 


306 


THE  HAGUE  COURT  REPORTS 


and  before  every  other  payment,  levied  upon  the  amount  paid  by 
X . . (a  debtor  of  the  Imperial  Ottoman  Government). 

On  April  22,  1889,  Turkey  made  a second  payment  on  account, 
of  50,000  pounds. 

On  December  31,  1890/January  12,  1891,  the  Embassy,  stating 
that  it  has  been  paid  only  100,000  pounds  out  of  a total  of  265,000, 
wrote  to  the  Sublime  Porte  that  the  delay  in  the  settlement  of  this 
debt  is  causing  the  Russian  nationals  to  sulfer  losses  that  are  con- 
tinually increasing;  it  believes,  therefore,  that  it  is  its  duty  to  re- 
quest the  Sublime  Porte  “to  have  immediate  orders  issued  by  the 
proper  persons  so  that  the  sum  due  may  be  paid  without  delay,  as 
well  as  the  legal  interest  in  regard  to  which  (the  Embassy)  had  the 
honor  of  notifying  the  Sublime  Porte  by  its  note  of  Eebruary  15/ 
27,  1887.” 

In  August,  1891,  a further  reminder  was  sent.  In  October/No- 
vember,  1892,  the  Embassy  wrote  “that  matters  can  not  continue 
indefinitely  in  this  way” ; that  “the  requests  of  Russian  subjects  are 
becoming  more  and  more  urgent,”  that  “it  is  the  duty  of  the  Em- 
bassy to  act  energetically  in  their  behalf  . . . that  it  is  a question  of 
an  indisputable  obligation  and  an  international  duty  to  be  performed 
. .”  that  “the  Ottoman  Government  can  no  longer  offer  as  ex- 

cuse the  precarious  state  of  its  finances,”  and  concluded  by  demand- 
ing a “prompt  and  final  settlement  of  the  debt.” 

April  2/14,  1893,  a third  instalment  of  75,000  Turkish  pounds 
was  paid;  the  Sublime  Porte,  in  giving  notice  of  this  payment  on 
March  27,  adds  that,  as  to  the  balance,  half  of  it  will  be  included  in 
the  current  budget  and  the  other  half  in  the  next  budget;  “the 
question  thus  settled  happily  ends  the  incidents  to  which  it  had 
given  rise.”  The  Porte  hoped,  therefore,  that  the  Embassy  would 
be  willing,  because  of  its  sincere  friendly  sentiments  towards  Tur- 
key, to  accept  definitively  the  tumbeki  monopoly  following  the  ex- 
ample of  the  other  Powers. 

On  this  occasion,  and  recalling  the  fact  that  the  Imperial  Rus- 
sian Government  “has  always  shown  itself  friendly  and  conciliating 
in  all  its  business  pertaining  to  the  financial  interests  of  the  Otto- 
man Empire,”  the  Embassy  acted  on  the  30th  of  the  same  month  in 
accordance  with  the  terms  announced  in  view  of  the  payment,  and 


THE  RUSSIAN  INDEMNITY  CASE 


307 


consented  to  subject  Russians  engaged  in  the  tumbeki  trade  in  Tur- 
key to  the  newly  created  arrangement. 

A year  later,  May  23/June  4,  1894,  not  having  received  another 
instalment,  the  Ambassador,  after  having  stated  the  non-perform- 
ance of  the  “arrangement”  to  which  he  had  “consented  in  order  to 
facilitate  the  fulfilment  of  its  obligation  by  the  Ottoman  Govern- 
ment,” declared  that  he  was  “placed  in  a position  which  renders  it 
impossible  for  him  to  accept  further  promises,  arrangements  or 
postponements,”  and,  “obliged  to  insist  that  the  total  of  the  balance 
due  to  Russian  subjects,  tvhich  amounts  to  pi,ooo  Turkish  pounds, 
be,  without  further  delay,  paid  to  the  Embassy.  . . . Recent  finan- 
cial operations  have  just  placed  at  the  disposal  (of  the  Sublime 
Porte)  large  sums.” 

On  October  27  of  the  same  year,  1894,  an  instalment  of  50,000 
Turkish  pounds  was  paid,  and  the  Sublime  Porte  wrote,  as  early  as 
the  third  of  the  same  month,  to  the  Embassy : “As  to  the  balance 
of  41,000  Turkish  pounds,  the  Ottoman  Bank  will  guarantee  pay- 
ment in  the  near  future.” 

In  1896,  there  was  an  exchange  of  correspondence  between  the 
Sublime  Porte  and  the  Embassy  as  to  whether  the  revenues  upon 
which  the  Ottoman  Bank  was  to  levy  the  balance  were  not  already 
pledged  to  Russia  for  payment  of  the  war  indemnity,  properly  so- 
called,  or  whether  that  portion  of  the  revenues  over  and  above  the 
annuity  affected  by  the  war  indemnity  could  not  be  used  to  indem- 
nify Russian  subjects  who  were  victims  of  the  events  of  1877-8. 
In  the  course  of  this  correspondence,  the  Sublime  Porte  pointed  out, 
in  the  notes  which  it  addressed  to  the  Embassy  on  February  1 1 and 
May  28,  1896,  that  the  balance  due  amounted  to  the  sum  of  43,978 
Turkish  pounds. 

From  1895  to  1899,  serious  events  occurring  in  Asia  Minor 
obliged  Turkey  to  seek  an  extension  in  behalf  of  the  Ottoman  Bank, 
at  its  request;  the  insurrection  of  the  Druses,  the  insurrection  in 
Crete  which  was  followed  by  the  Graeco-Turkish  war  of  1897,  and 
insurrections  in  Macedonia,  caused  Turkey  repeatedly  to  mobilize 
troops  and  even  armies. 

For  three  years  no  correspondence  was  exchanged  and  when  it 
was  resumed  the  Sublime  Porte,  in  notes  it  addressed  to  the  Em- 


308 


THE  HAGUE  COURT  REPORTS 


bassy,  July  19,  1899,  and  July  5,  1900,  again  specified  43,978 
Turkish  pounds  as  the  amount  of  the  balance  of  the  indemnities. 
On  its  part,  the  Embassy,  in  its  notes  of  April  25/May  8,  1900,  and 
March  3/16,  1901,  specified  the  same  figure,  but  complained  that 
the  orders  given  in  various  provinces  “for  the  payment  of  the 
43,978  Turkish  pounds,  the  amount  of  the  balance  of  the  indemnity 
due  Russian  subjects,”  have  not  been  carried  out,  and  that  the 
Ottoman  Bank  has  paid  nothing;  it  urgently  requests  the  Sublime 
Porte  kindly  to  give  categorical  orders  to  the  proper  person  for 
the  payment,  without  further  delay,  of  the  above-mentioned  sums.” 
After  the  Sublime  Porte  had  announced  in  May,  1901,  that  the 
Department  of  Finance  had  been  urged  to  settle  the  balance  of  the 
indemnity  during  the  course  of  the  month,  the  Ottoman  Bank  at 
last  advised  the  Russian  Embassy  on  February  24  and  May  26, 
1902,  that  it  had  received  and  was  holding  at  the  disposal  of  the 
Embassy  42,438  Turkish  pounds  of  the  balance  of  43,978  pounds. 

The  Embassy  in  acknowledging  receipt  of  this  notice  two  months 
later,  June  23/July  6,  1902,  remarked  to  the  Sublime  Porte,  “that 
the  Imperial  Ottoman  Government  has  taken  more  than  twenty 
years  to  liquidate,  and  incompletely  at  that,  a debt  the  immediate 
settlement  of  which  was  required  from  every  point  of  view,  a bal- 
ance of  1,539  Turkish  pounds  still  remaining  unpaid.  Referring, 
therefore,  to  its  notes  of  September  23,  1881,  February  15/27, 
1887,  and  December  31,  18SK)/January  12,  1891,  in  regard  to  the 
interest  to  run  on  the  said  debt,  remaining  so  long  in  suspense,”  the 
Embassy  transmitted  a petition  in  which  the  claimants  demand, 
in  substance,  compound  interest  at  12%  from  January  1,  1881,  to 
March  15,  1887,  and  at  9%  from  the  latter  date,  when  the  legal  rate 
of  interest  was  reduced  by  an  Ottoman  law.  The  sum  claimed  by 
the  petitioners  amounted  in  the  spring  of  1902  to  some  twenty  mil- 
lion francs  on  an  original  principal  of  about  6,200,000  francs.  The 
note  concluded  as  follows: 

The  Imperial  Embassy  is  pleased  to  believe  that  the  Sublime 
Porte  will  not  hesitate  to  admit  in  principle  the  just  grounds 
for  the  claim  set  forth  in  this  petition.  In  case,  however,  the 
Sublime  Porte  should  raise  objections  to  the  amount  of  the 
sum  claimed  by  the  Russian  subjects,  the  Imperial  Embassy 


THE  RUSSIAN  INDEMNITY  CASE 


309 


sees  no  reason  why  examination  of  the  details  should  not  be 
deferred  to  a commission  composed  of  Russian  and  Ottoman 
delegates. 

The  Sublime  Porte  replied  on  the  17th  of  the  same  month,  July, 
1902,  that  Article  5 of  the  treaty  of  peace  of  1879  and  the  protocol 
of  the  same  date  do  not  provide  for  interest,  and  that  in  the  light 
of  the  diplomatic  negotiations  which  have  taken  place  on  the  sub- 
ject, it  was  far  from  expecting  that  the  claimants  would  make  such 
demands  at  the  last  moment,  the  effect  of  which  would  be  to  re- 
open a question  which  was  happily  closed.  The  Embassy  replied 
on  Februaiy  3/16,  1903,  insisting  “upon  payment  of  the  interest- 
damages  claimed  by  its  subjects.  Only  the  amount  of  the  damages 
could  be  a matter  for  investigation.”  In  reply  to  a reminding  note 
dated  August  2/15,  1903,  the  Sublime  Porte  maintained  its  point 
of  view,  declaring  itself,  however,  willing  to  submit  the  question  to 
arbitration  at  The  Hague,  in  case  the  claim  should  be  insisted  upon. 

At  the  end  of  four  years  the  Embassy  accepted  this  suggestion  by 
a note  of  March  19/ April  1,  1908. 

The  arbitration  agreement  was  signed  at  Constantinople,  July 
22/August  4,  1910. 

As  to  the  small  sum  of  1,539  Turkish  pounds,  it  was,  in  Decem- 
ber, 1902,  placed  by  the  Ottoman  Bank  at  the  disposal  of  the  Rus- 
sian Embassy,  which  refused  it,  and  it  remains  deposited  at  the 
disp>osal  of  the  Embassy. 

II 

In  THE  Matter  of  Law 

1.  The  Imperial  Russian  Government  bases  its  demand  upon 
“the  responsibility  of  States  for  the  non-payment  of  pecuniary-^ 
debts” ; this  responsibility  implies,  according  to  it,  “obligation  to 
pay  interest-damages  and  especially  interest  on  sums  unduly  with- 
held” ; “the  obligation  to  pay  moratory  interest”  is  “practical  proof, 
in  the  matter  of  money  debts,”  of  the  responsibility  of  States  (Reply 
of  Russia,  pp.  27  and  51).  “Failure  to  recognize  these  principles 
would  be  as  contrary  to  the  very  conception  of  international  law  as  • 
it  would  be  dangerous  to  the  safety  of  peaceful  relations;  in  fact,  ' 
by  declaring  a debtor  State  irrespionsible  for  the  delay  which  it 


310 


THE  HAGUE  COURT  REPORTS 


causes  its  creditor,  it  would  be  admitted  by  that  very  fact  that  it 
need  only  follow  its  own  whim  in  making  payments;  . . . the 
creditor  State,  on  the  other  hand,  would  be  obliged  to  resort  to 
violence  against  such  a contention  . . . and  to  expect  nothing 

from  a pretended  international  law  incapable  of  compelling  the 
promiser  to  keep  his  word”  (Russian  Case,  p.  29). 

In  other  words,  and  still  in  the  opinion  of  the  Imperial  Russian 
Government,  “it  is  not  a question  of  conventional  interest,  that 
is  to  say,  interest  arising  from  a particular  stipulation  . . but 

that  “the  obligation  incumbent  upon  the  Imperial  Ottoman  Govern- 
ment to  pay  moratory  interest  arises  from  the  delay  in  the  per- 
formance of  the  act,  that  is  to  say,  the  partial  non-fulfilment  of  the 
stipulations  of  the  treaty  of  peace;  this  obligation  arose  indeed,  it 
is  true,  from  the  treaty  of  1879,  but  it  proceeds  ex  post  facto  from 
a new  and  accidental  cause,  namely,  the  failure  of  the  Sublime  Porte 
to  carry  out  its  contract  as  it  pledged  itself  to  do”  (Russian  Case, 
p.  29;  Russian  Reply,  pp.  22  and  27). 

2.  The  Imperial  Ottoman  Government,  while  admitting  in  ex- 
plicit terms  the  general  principle  of  the  responsibility  of  States  in 
the  matter  of  the  non-fulfilment  of  their  engagements  (Counter- 
reply, p.  29,  No.  286,  note,  and  p.  52,  No.  358),  maintains,  on  the 
contrary,  that  in  public  international  law  moratory  interest  does  not 
exist  “unless  expressly  stipulated”  (Ottoman  Counter-case,  p.  31, 
No.  83,  and  p.  34,  No.  95) ; that  a State  “is  not  a debtor  like  other 
debtors”  (ibid,  p.  33,  No.  90),  and  that,  without  attempting  to  main- 
tain “that  no  principle  which  is  observed  between  individuals  can 
be  applied  between  States”  (Ottoman  Counter-reply,  p.  26,  No. 
275),  the  position  sui  generis  of  the  State  as  a public  Power  must 
be  taken  into  account;  that  various  legislative  acts  (for  example, 
the  French  law  of  1831,  which  establishes  a period  of  five  years  for 
the  outlawing  of  State  debts;  the  Roman  law  which  lays  down  the 
principle  Fiscus  ex  suis  contractibus  usuras  non  dot,  Lex  17,  par. 
5,  Digest  22,  1)  admit  that  the  debtor  State  stands  in  a privileged 
position  (Ottoman  Counter-reply,  p.  33,  No.  92)  ; that  in  admitting 
against  a State  an  implied  obligation,  not  expressly  stipulated,  in 
extending,  for  example,  to  a debtor  State  the  principles  of  a formal 
demand  for  payment  and  its  effect  in  private  law.  this  State  would 
be  made  a “debtor  to  a greater  extent  than  it  would  have  desired. 


THE  RUSSIAN  INDEMNITY  CASE 


311 


and  there  would  be  the  risk  of  compromising  the  political  life  of 
the  State,  injuring  its  vital  interests,  upsetting  its  budget,  prevent- 
ing it  from  defending  itself  against  an  insurrection  of  foreign  at- 
tack” (Ottoman  Counter-case,  p.  33,  No.  91). 

Contingently,  in  case  responsibility  should  attach  to  it,  the  Im- 
perial Ottoman  Government  concludes  that  this  responsibility  con- 
sists solely  in  moratory  interest,  that  interest  being  due  only  from 
the  date  of  the  regular  formal  demand  for  payment  (Ottoman 
Counter-reply,  pp.  71,  et  scq.,  Nos.  410,  et  seq.). 

It  presents  in  opposition,  moreover,  the  exceptions  of  res  judi- 
cata, of  force  majeure,  of  the  gift  character  of  the  indemnities,  and 
of  the  tacit  or  express  renunciation  by  Russia  of  the  benefit  of 
the  legal  demand  for  payment. 

3.  The  questions  of  law  involved  in  the  present  litigation,  which 
has  arisen  between  States  as  public  Powers  subject  to  international 
law,  and  these  questions  being  within  the  province  of  public  law, 
the  law  to  be  applied  is  public  international  law,  or  the  law  of 
nations,  and  the  parties  rightly  agree  upon  this  point  (Russian  Case, 
p.  32;  Ottoman  Counter-case,  Nos.  47  to  54,  p.  18;  Russian  reply, 
p.  18;  Ottoman  Counter-reply,  p.  17,  Nos.  244  and  245). 

4.  The  demand  of  the  Imperial  Russian  Government  is  based 
upon  the  general  principle  of  the  responsibility  of  States,  in  sup- 
port of  which  it  has  cited  a large  number  of  arbitral  awards. 

The  Sublime  Porte,  without  disputing  this  general  principle, 
contends  that  it  is  not  subject  to  its  application,  but  that  States  have 
the  right  to  an  exceptional  and  privileged  position  in  the  special  case 
of  responsibility  in  the  matter  of  money  debts. 

It  declares  that  the  majority  of  the  arbitral  precedents  cited  are 
of  no  force,  as  they  do  not  apply  to  this  special  category. 

The  Imperial  Ottoman  Government  remarks,  in  support  of  its 
point  of  view,  that  in  theory  there  is  a distinction  between  various 
responsibilites,  according  to  their  origin  and  according  to  their 
scope.  These  shades  of  difference  occur  especially  in  the  theory  of 
responsibilities  in  the  Roman  law  and  in  systems  of  law  inspired 
by  the  Roman  law.  In  the  Ottoman  Case  attention  is  called  to  the 
following  distinctions,  some  of  which  are  classic : Responsibilities 
are,  in  the  first  place,  divided  into  two  categories,  according  as  they 
arise  from  an  act  of  violence  or  a quasi-act  of  violence,  or  from  a 


312 


THE  HAGUE  COURT  REPORTS 


contract.  Among  contractual  responsibilities  there  is  a further  dis- 
tinction, according  as  it  is  a question  of  obligations  concerning  a 
prestation  of  some  kind  other  than  a sum  of  money,  or  a question  of 
prestations  of  a purely  pecuniary  nature,  of  a money  debt  prop>erly 
so-called.  These  various  categories  of  responsibilities  are  not  ap- 
preciated in  civil  law  in  absolutely  the  same  manner,  the  circum- 
stances giving  rise  to  the  responsibility  as  well  as  its  consequences 
being  variable.  While  in  the  matter  of  responsibilities  arising  from 
acts  of  violence  no  formality  whatever  is  necessary,  in  the  matter 
of  contractual  responsibilities  a demand  in  due  form  of  law  is 
always  required.  While  in  the  matter  of  obligations  concerning  a 
prestation  other  than  one  involving  a .sum  of  money,  as  likewise 
in  the  matter  of  acts  of  violence  the  reparation  for  the  damage  is 
complete  {lucrum  cessans  and  damnum  emergens),  this  reparation, 
in  the  matter  of  money  debts,  is  restricted  legally  to  interest  on  the 
sum  due,  which  interest  runs  only  from  the  date  of  the  demand  in 
due  form  of  law.  ^ The  interest-damages  are  called  compensatory,] 
when  they  are  compensation  for  damage  resulting  from  the  act  of 
violence  or  the  non-fulfilment  of  an  obligation.  They  are  moratory 
interest-damages  when  they  are  caused  by  delay  in  the  fulfilment  of 
an  obligation.^  Finally,  writers  call  moratory  interest  interest  legally 
allowed  in  case  of  delay  in  the  payment  of  money  debts,  thus  dis- 
tinguishing it  from  other  interest  which  is  sometimes  added  to  the 
money  valuation  of  damages,  to  fix  the  total  amount  of  an  indem- 
nity, this  last  being  called  compensatory  interest. 

These  distinctions  in  civil  law  can  be  explained : in  the  matter  of 
contractual  responsibility  one  has  the  right  to  require  greater 
promptness  on  the  part  of  the  other  contracting  party  than  the 
victim  of  an  unforeseen  act  of  violence  could  expect.  In  the  mat- 
ter of  money  debts,  the  difficulty  of  estimating  the  consequences  of 
the  demand  explains  why  the  amount  of  the  damages  has  been  fixed 
legally. 

The  argument  of  the  Imperial  Ottoman  Government  consists  in 
maintaining  that  in  public  international  law  special  responsibility, 
consisting  in  the  payment  of  moratory  interest  in  case  of  delay  in 
the  settlement  of  a money  debt,  does  not  exist  so  far  as  a debtor  State 
is  concerned.  The  Sublime  Porte  does  not  dispute  the  responsibility 
of  States  if  it  is  a question  of  comp>ensatory  interest,  or  of  interest 


THE  RUSSIAN  INDEMNITY  CASE 


313 


that  might  enter  into  the  calculation  of  these  compensatory  interest- 
damages.  The  responsibility  .which  the  Sublime  Porte  refuses  to 
acknowledge  is  the  interest  which  may  result,  in  the  form  of  inter- 
est for  delay  or  moratory  interest,  in  the  restricted  sense,  from 
delay  in  the  fulfilment  of  a pecuniary  obligation. 

It  is  necessary  to  investigate  whether  these  various  terms,  these 
appellations  invented  by  commentators,  correspond  to  intrinsic  dif- 
ferences in  the  very  nature  of  law,  differences  essentially  juridical 
in  the  conception  of  responsibility.  The  tribunal  is  of  the  opinion 
that  all  interest-damages  are  always  reparation,  compensation  for 
culpability.  From  this  point  of  view  all  interest-damages  are  com- 
pensatory, whatever  name  they  may  be  given.  Legal  interest  al- 
lowed a creditor  for  a sum  of  money  from  the  date  of  the  demand 
in  due  form  of  law  is  the  legal  compensation  for  the  delinquency 
of  a tardy  debtor  exactly  as  interest-damages  or  interest  allowed  in 
case  of  an  act  of  violence,  of  a quasi-act  of  violence,  of  the  non- 
fulfilment  of  an  obligation,  are  compensation  for  the  injury  suffered 
by  the  creditor,  the  money  value  of  the  responsibility  of  the  delin- 
quent debtor.  Exaggeration  of  the  consequences  of  civil-law  dis- 
tinctions in  responsibility  is  the  more  inadmissible  because  in  much 
recent  legislation  there  appears  a tendency  to  lessen  or  abolish  the 
mitigation  which  the  Roman  law  and  its  derivatives  admitted  in  the 
matter  of  responsibility  as  to  money  debts.  It  is  certain,  indeed, 
that  all  culpability,  whatever  may  be  its  origin,  is  finally  valued  in 
money  and  transformed  into  obligation  to  pay;  it  all  ends  or  can 
end,  in  the  last  analysis,  in  a money  debt.  The  tribunal,  therefore, 
can  not  possibly  perceive  essential  differences  between  various  re- 
sponsibilities. Identical  in  their  origin — culpability — they  are  the 
same  in  their  consequences — reparation  in  money. 

The  tribunal  is,  therefore,  of  the  opinion  that  the  general  prin- 
ciple of  the  responsibility  of  States  implies  a special  responsibility 
in  the  matter  of  delay  in  the  payment  of  a money  debt,  unless  the 
existence  of  a contrary  international  custom  is  proven. 

The  Imperial  Russian  Government  and  the  Sublime  Porte 
brought  into  their  arguments  a series  of  arbitral  decisions,  which 
have  admitted,  affirmed  and  sanctioned  the  principle  of  the  responsi- 
bility of  States.  The  Sublime  Porte  considers  nearly  all  of  these 
decisions  without  any  bearing  on  the  present  case,  and  eliminates 


314 


THE  HAGUE  COURT  REPORTS 


even  those  in  which  the  arbitrator  has  expressly  allowed  interest 
on  sums  of  money.  The  Imperial  Ottoman  Government  is  of  the 
opinion  that  in  these  cases  it  is  a question  of  compensatory  interest 
and  sets  them  aside  as  having  no  bearing  on  the  present  litigation. 
The  tribunal,  for  the  reasons  indicated  above,  is  of  the  opinion,  on 
the  contrary,  that  there  is  no  reason  why  the  great  analogy  which 
exists  between  the  different  forms  of  responsibility  should  not  be 
taken  into  account ; this  analogy  appears  particularly  close  between 
interest  called  moratory  and  interest  called  compensatory.  The 
analogy  appears  to  be  complete  between  the  allowance  of  interest 
from  a certain  date  upon  valuing  the  responsibility  in  money,  and 
the  allowance  of  interest  on  the  principal  determined  by  agree- 
ment and  remaining  unpaid  by  a delinquent  debtor.  The  only  dif- 
ference is  that,  in  one  case  the  interest  is  allowed  by  the  judge,  since 
the  debt  was  not  exigible,  and  in  the  other  case  the  amount  of  the 
debt  was  determined  by  agreement  and  the  interest  becomes  exigible 
automatically  in  case  of  demand  in  due  form  of  law. 

To  weaken  this  close  analogy,  the  Sublime  Porte  must  prove  the 
existence  of  a custom — of  precedents  in  accordance  with  which 
moratory  interest  in  the  restricted  sense  of  the  word  had  been  re- 
fused because  it  was  moratory  interest, — or  the  existence  of  a cus- 
tom derogatory,  in  the  matter  of  a pecuniary  debt,  to  the  general 
principles  of  responsibility.  The  tribunal  is  of  the  opinion  that 
such  proof  not  only  has  not  been  given,  but,  on  the  contrary,  the 
Imp>erial  Russian  Government  has  been  able  to  reinforce  its  posi- 
tion by  several  arbitral  awards  in  which  moratory  interest  has  been 
allowed  to  States,  in  some  cases,  it  is  true,  with  shades  of  difference, 
and  to  a certain  extent  debatable  (Mexico-Venezuela,  October  2, 
1903.  Russian  Case,  p.  28,  and  note  5;  Ottoman  Counter-case,  p. 
38,  No.  107 ; Columbia-Italy,  April  9,  1904.  Russian  Reply,  p.  28 
and  note  7 ; Ottoman  Counter-reply,  p.  58,  No.  368;  United  States- 
Choctaws.  Russian  Reply,  p.  29,  Ottoman  Counter-reply,  p.  59, 
No.  369;  United  States- Venezuela,  December  5,  1885.  Russian 
Reply,  p.  28,  and  note  5).  To  these  cases  should  be  added  the 
award  made  on  July  2,  1881,  by  His  Majesty  the  Emperor  of 
Austria  in  the  Mosquito  affair,  in  the  sense  that  the  arbitrator  in 
no  wise  refused  moratory  interest  as  such,  but  simply  declared  that 
the  principal  being  in  the  nature  of  a gift,  interest  for  deferred  pay- 


THE  RUSSIAN  INDEMNITY  CASE 


315 


ment  should  not,  in  the  judgment  of  the  arbitrator,  be  allowed  (Rus- 
sian Reply,  p.  28,  note  4;  Ottoman  Counter-reply,  p.  55,  No.  365, 
note). 

It  remains  to  examine  the  question  whether  the  Sublime  Porte  has 
any  grounds  for  maintaining  that  a debtor  State  is  not  like  other 
debtors,  that  it  can  not  be  a “debtor  to  a greater  extent  than  it  may 
have  wished,”  and  that  by  binding  it  with  obligations  which  it  has 
not  stipulated,  for  example,  the  responsibilities  of  a private  debtor, 
there  is  the  risk  of  compromising  its  finances  and  even  its  political 
existence. 

When  the  tribunal  has  admitted  that  no  essential  differences 
distinguish  the  various  responsibilities  of  States  from  each  other, 
that  all  are  resolved  or  finally  may  be  resolved  into  the  payment  of 
a sum  of  money,  and  that  international  custom  and  precedents  ac- 
cord with  these  principles,  it  must  be  concluded  that  the  responsi- 
bility of  States  can  be  denied  or  admitted  only  in  its  entirety  and  not 
in  part;  thenceforth  it  would  not  be  possible  for  the  tribunal  to 
declare  this  responsibility  inapplicable  in  the  matter  of  money  debts 
without  extending  this  inapplicability  to  all  the  other  categories 
of  responsibilities. 

If  a State  is  condemned  to  compensatory  interest-damages  be- 
cause of  an  act  of  violence  or  the  non-fulfilment  of  an  obligation,  it 
is  a debtor  to  a degree  which  it  may  not  have  voluntarily  stipulated, 
even  more  so  than  in  case  of  delay  in  the  payment  of  a conventional 
money  debt.  As  to  the  effects  of  these  responsibilities  upon  the 
finances  of  a debtor  State,  they  might  indeed  be  just  as  serious,  if 
not  more  so,  if  it  were  a question  of  interest-damages  which  the 
Sublime  Porte  calls  compensatory,  as  when  it  is  simply  a question 
of  moratory  interest  in  the  restricted  sense  of  the  word.  More- 
over, however  little  the  responsibility  may  imperil  the  existence  of 
the  State,  it  would  constitute  a case  of  force  majeure  which  could  be 
pleaded  in  public  international  law  as  well  as  by  a private  debtor. 

The  tribunal  is,  therefore,  of  the  opinion  that  the  Sublime  Porte, 
which  has  explicitly  accepted  the  principle  of  the  responsibility  of 
States,  has  no  grounds  for  demanding  an  exception  to  this  responsi- 
bility in  the  matter  of  money  debts  by  pleading  its  character  of 
public  Power  and  the  political  and  financial  consequences  of  this 
responsibility. 


316 


THE  HAGUE  COURT  REPORTS 


5.  To  determine  in  what  this  special  responsibility,  which  is 
incumbent  upon  a State  debtor  for  a clear  and  exigible  conventional 
debt,  consists,  it  is  now  necessary  to  examine,  proceeding  by  analogy 
as  in  the  case  of  the  arbitral  awards  which  have  been  pleaded,  the 
general  principles  of  public  and  private  law  in  this  matter,  as  much 
from  the  point  of  view  of  the  extent  of  this  responsibility  as  of  the 
contrary  exceptions. 

All  the  private  legislation  of  the  States  forming  the  European 
concert  admits,  as  did  formerly  the  Roman  law,  the  obligation  to 
pay  at  least  interest  for  delayed  payments  as  legal  indemnity  when  it 
is  a question  of  the  non-fulfilment  of  an  obligation  consisting  in 
the  payment  of  a sum  of  money  fixed  by  convention,  clear  and 
exigible,  such  interest  to  be  paid  at  least  from  the  date  of  the  de- 
mand made  upon  the  debtor  in  due  form  of  law.  Some  of  this 
legislation  goes  farther  and  considers  that  such  demand  is  already 
made  upon  the  debtor  on  the  date  when  the  debt  falls  due,  or  admits 
complete  reparation  for  damages  instead  of  simple  legal  interest. 

If  most  legislation,  following  the  example  of  the  Roman  law,  re- 
quires an  express  demand  in  due  form  of  law,  it  is  because  the  cred- 
itor on  his  part  is  in  default  for  lack  of  diligence  inasmuch  as  he 
does  not  demand  payment  of  a clear  and  exigible  sum. 

The  Imperial  Russian  Government  (Case,  p.  32)  itself  admits, 
in  favor  of  the  necessity  of  a demand  in  due  form  of  law,  that,  in 
equity,  it  may  be  expedient  “not  to  take  by  surprise  a debtor  State 
liable  to  moratory  interest,  when  no  notice  had  been  given  to  re- 
mind it  to  carry  out  its  engagements.”  Writers  (for  example, 
Heffter,  International  Law  of  Europe,  paragraph  94)  remark  that, 
in  “the  execution  of  a public  treaty,  we  must  proceed  with  modera- 
tion and  equity,  according  to  the  maxim  that  we  must  treat  others 
as  we  wish  to  be  treated  ourselves.  We  must,  therefore,  grant 
reasonable  extensions,  so  that  the  obligated  party  may  suffer  the 
least  possible  injury.  The  obligated  party  may  await  the  creditor’s 
demand  in  due  form  of  law  before  being  held  responsible  for  delay, 
provided  it  is  not  a question  of  prestations,  the  performance  of 
which  it  expressly  stipulated  for  a fixed  time.”  (See  also  Merign- 
hac.  Treatise  on  International  Arbitration,  Paris,  1895,  p.  290.) 

A number  of  international  arbitral  awards  have  admitted  that, 
even  when  it  is  a question  of  interest-damages  for  deferred  pay- 


THE  RUSSIAN  INDEMNITY  CASE 


317 


ments,  there  is  no  occasion  to  have  it  run  from  the  date  of  the  dam- 
ageable fact  (United  States  v.  Venezuela,  Orinoco — Hague  award 
of  October  25,  1910,  protocols,  p.  59;  United  States  v.  Chile,  May 
15,  1863 — award  of  His  Majesty  the  King  of  the  Belgians,  Leo- 
pold I.  La  Fontaine,  Pasicrisie,  p.  36,  column  2 and  page  37,  col- 
umn 1 ; Germany  v.  Venezuela — Arrangement  of  May  7,  1903. 
Ralston  & Doyle,  Venezuelan  Arbitrations,  Washington,  1904,  pp. 
520  to  523;  United  States  v.  Venezuela,  December  5,  1885.  Moore, 
Digest  of  International  Arbitrations,  pp.  3545  and  3567,  vol.  4, 
etc. ) . 

Hence  there  is  no  occasion,  and  it  would  be  contrary  to  equity, 
to  assume  that  a debtor  State  is  subject  to  stricter  responsibility 
than  a private  debtor  in  most  European  legislation.  Equity  re- 
quires, as  its  theory  indicates  and  as  the  Imperial  Russian  Govern- 
ment itself  admits,  that  there  shall  be  notice,  demand  in  due  form 
of  law  addressed  to  the  debtor,  for  a sum  which  does  not  bear  in- 
terest. The  same  reasons  require  that  the  demand  in  due  form  of 
law  shall  mention  expressly  the  interest,  and  combine  to  set  aside 
responsibility  for  more  than  simple  legal  interest. 

It  is  seen  from  the  correspondence  submitted,  that  the  Imperial 
Russian  Government  has  expressly  and  in  absolutely  categorical 
terms  demanded  payment  from  the  Sublime  Porte  of  the  principal 
and  “interest,”  by  the  note  of  its  Embassy  at  Constantinople,  dated 
December  31,  1890/January  12,  1891.  Diplomatic  channels  are  the 
normal  and  regular  means  of  communication  between  States  in 
their  relations  governed  by  international  law.  This  demand  for 
payment  is,  therefore,  regular  and  in  due  form. 

The  Imperial  Ottoman  Government  must,  consequently,  be  held 
responsible  for  the  interest  for  delayed  payments  from  the  date  of 
the  receipt  of  this  demand  in  due  form  of  law. 

The  Imperial  Ottoman  Government  pleads,  in  case  responsibility 
is  imposed  upon  it,  various  exceptions,  the  scope  of  which  remains 
to  be  examined : 

6.  The  exception  of  “force  majeure,”  cited  as  of  the  first  impor- 
tance, may  be  pleaded  in  opposition  in  public  as  well  as  in  private 
international  law.  International  law  must  adapt  itself  to  political 
necessities.  The  Imperial  Russian  Government  expressly  admits 
(Russian  Reply,  p.  33  and  note  2)  that  the  obligation  of  a State  to 


318 


THE  HAGUE  COURT  REPORTS 


carry  out  treaties  may  give  way  “if  the  very  existence  of  the  State 
should  be  in  danger,  if  the  observance  of  the  international  duty 
is  . . . ‘self-destructive.’  ” 

It  is  incontestable  that  the  Sublime  Porte  proves,  by  means  of 
the  exception  of  force  majeure  (Ottoman  Counter-reply,  p.  43,  Nos. 
119  to  128,  Ottoman  Counter-reply,  p.  64,  Nos.  382  to  398  and 
p.  87)  that  Turkey  was,  from  1881  to  1902,  in  the  midst  of  finan- 
cial difficulties  of  the  utmost  seriousness,  increased  by  domestic 
and  foreign  events  (insurrections  and  wars)  which  forced  it  to 
make  special  application  of  a large  part  of  its  revenues,  to  undergo 
foreign  control  as  to  part  of  its  finances,  to  grant  even  a mora- 
torium to  the  Ottoman  Bank,  and,  in  general,  it  was  placed  in  a 
position  where  it  could  meet  its  engagements  only  with  delay  and 
postponements,  and  even  then  at  great  sacrifice.  But  it  is  asserted, 
on  the  other  hand,  that  during  this  same  period  and  especially  fol- 
lowing the  creation  of  the  Ottoman  Bank,  Turkey  was  able  to 
obtain  loans  at  favorable  rates,  redeem  other  loans,  and,  finally, 
pay  off  a large  part  of  its  public  debt,  estimated  at  350,000,000 
francs  (Russian  Reply,  p.  37).  It  would  clearly  be  exaggeration 
to  admit  that  the  payment  (or  obtaining  of  a loan  for  the  payment) 
of  the  comparatively  small  sum  of  about  six  million  francs  due  the 
Russian  claimants  would  imperil  the  existence  of  the  Ottoman  Em- 
pire or  seriously  compromise  its  internal  or  external  situation.  The 
exception  of  force  majeure  can  not,  therefore,  be  admitted. 

7.  The  Sublime  Porte  maintains  then  “that  the  acknowledge- 
ment of  a principal  debt  to  the  Russian  claimants  constituted  a 
gift  agreed  upon  in  their  interest  between  the  two  Governments’’ 
( Counter- reply , No.  253,  p.  19;  No.  331,  p.  44;  No.  365,  p.  55. 
and  conclusions,  p.  87).  It  remarks  that  the  German  civil  code, 
paragraph  522,  the  Germanic  common  law,  Austrian  jurisprudence 
and  the  Roman  law,  pleaded  on  suppletory  grounds  (Law  16, 
praemium,  Digest  22.  1 ) forbid  the  imposition  of  moratory  interest 
in  the  case  of  a donation.  It  cites,  especially,  the  arbitral  award 
made  on  July  2,  1881,  by  His  Majesty  the  Emperor  of  Austria  in 
the  Mosquito  affair  between  Great  Britain  and  Nicaragua. 

In  this  affair  Great  Britain  had  renounced  by  a treaty  of  1860 
its  protectorate  over  Mosquito,  had  given  up  the  city  of  Grey  Town 
(San  Juan  del  Norte)  and  had  recognized  the  sovereignty  of  Nica- 


THE  RUSSIAN  INDEMNITY  CASE 


319 


ragua  over  Mosquito,  stipulating  that  this  republic  should  pay  for 
ten  years  to  the  chief  of  the  Mosquitos  an  annual  sum  of  5,000 
dollars,  to  facilitate  the  establishment  of  self-government  in  his 
territories.  It  was  not  long  before  this  annuity  ceased  to  be  paid. 
In  the  opinion  of  the  arbitrator,  the  chief  of  the  Mosquitos  was  re- 
ceiving the  benefit  of  a veritable  gift,  claimed  in  his  behalf  from 
Nicaragua  by  the  British  Government,  which  had  made  political 
sacrifices  in  giving  up  its  protectorate  and  the  port  of  Grey  Town. 

In  the  opinion  of  the  tribunal,  the  Russian  claimants  suffered 
damages — were  victims  of  acts  of  war.  Turkey  bound  itself  to  re- 
imburse the  amount  of  these  damages  to  all  the  Russian  victims  who 
might  prove  their  injury  to  the  satisfaction  of  the  commission  estab- 
lished at  the  Russian  Embassy  at  Constantinople.  The  decisions 
of  this  commission  were  not  contested  and  it  is  not  incumbent  upon 
the  arbitral  tribunal  to  examine  into  them  again  or  to  decide  whether 
or  not  they  were  too  liberal.  If  the  indemnification  by  Turkey  of  the 
Russian  victims  of  war  operations  was  not  compulsory  in  the 
common  law  of  nations,  it  is  in  nowise  contrary  to  that  law  and 
can  be  considered  as  the  transformation  of  a moral  duty  into  a 
juridical  obligation  by  a treaty  of  peace,  under  conditions  analogous 
to  a war  indemnity  properly  so  called.  In  all  the  thirty  years’ 
diplomatic  correspondence  over  this  affair,  the  Russian  victims  of 
war  operations  have  always  been  considered  by  the  two  parties 
signatory  to  the  agreements  of  1878-1879  as  claimants  and  not  as 
donees.  Finally,  Turkey  has  obtained  value  received  for  its  pre- 
tended gift  by  the  fact  that  hostilities  have  ceased  (Russian  Reply, 
p.  50,  paragraph  2).  It  is,  therefore,  not  possible  to  admit  the  ex- 
istence of  an  act  of  generosity,  and  still  less  of  a gift,  and  it  is  con- 
sequently superfluous  to  inquire  whether  in  public  international  law 
donors  should  receive  the  benefit  of  exemption  from  moratory  in- 
terest, established  for  their  benefit  by  certain  private  legislation. 

8.  The  Sublime  Porte  pleads  the  exception  of  res  judicata,  sup- 
porting its  position  upon  the  fact  that  three  claimants  have  asked 
the  commission  established  at  the  Russian  Embassy  at  Constanti- 
nople for  interest  to  the  time  of  complete  payment,  that  the  commis- 
sion set  aside  their  request,  and  that  this  negative  action  would  cer- 
tainly have  intervened  in  the  case  of  the  other  claimants  who  have 
not  demanded  such  interest.  (Ottoman  Counter-reply,  p.  86.) 


320 


THE  HAGUE  COURT  REPORTS 


This  exception  can  not  be  admitted  because,  even  granting  that 
the  Constantinople  commission  may  be  considered  as  a tribunal,  the 
question  now  pending  is  whether  interest-damages  are  due,  a pos- 
teriori, by  reason  of  the  dates  on  which  the  indemnities  fixed  from 
1878—81  by  the  commission  were  paid.  But  that  commission  did 
not  decide  and  could  not  have  decided  this  question. 

9.  The  Sublime  Porte  pleads,  as  a last  exception,  the  fact  “that 
it  was  understood,  tacitly  and  indeed  expressly,  in  the  course  of  the 
eleven  or  twelve  last  years  of  diplomatic  correspondence,  that  Rus- 
sia did  not  claim  interest  or  interest-damages  of  any  kind  which 
would  have  been  a burden  to  the  Ottoman  Empire,”  and  “that  the 
Imperial  Russian  Government,  when  once  the  entire  principal  was 
placed  at  its  disposal,  could  not  validly  bring  up  again  in  a one- 
sided manner  the  understanding  agreed  to  by  it”  (Ottoman  Coun- 
ter-reply, pp.  89-91). 

The  Imperial  Ottoman  Government  remarks,  and  justly,  that  if 
Russia  sent  to  Constantinople  through  diplomatic  channels,  on  De- 
cember 31,  1890/January  12,  1891,  a regular  demand  for  payment 
of  the  principal  and  interest  it  follows,  on  the  other  hand,  from  the 
subsequent  correspondence,  that  at  the  time  of  the  payments  on  ac- 
count, no  interest  reservation  appeared  in  the  receipts  given  by  the 
Embassy,  and  the  Embassy  never  considered  the  sums  received  as 
interest.  It  also  follows  that  the  parties  not  only  mapped  out 
plans  to  bring  about  payment,  but  abstained  from  mentioning  in- 
terest during  a period  of  some  ten  years.  It  follows,  above  all,  that 
the  two  Governments  interpreted  in  the  same  manner  the  term  bal- 
ance of  the  indemnity;  that  this  term,  used  for  the  first  time  by  the 
Ottoman  Ministry  of  Foreign  Affairs  in  its  communication  of 
March  27,  1893,  frequently  recurs  thereafter;  that  the  two  Gov- 
ernments have  constantly  meant  by  the  word  balance  the  portion 
of  the  principal  remaining  due  on  the  date  the  notes  were  exchanged, 
which  sets  aside  moratory  interest;  that  the  Russian  Ambassador 
at  Constantinople  wrote  on  May  23/June  4,  1894:  “I  am  obliged 
to  insist  that  the  total  of  the  balance  due  Russian  subjects,  which 
amounts  to  91,000  Turkish  pounds,  be  paid  to  the  Embassy  without 
further  delay,  in  order  to  give  satisfaction  to  the  just  complaints 
and  claims  of  those  interested  . . . and  thus  really  put  an  end — 
to  use  your  Excellency’s  expression — to  the  incidents  to  which  it 


THE  RUSSIAN  INDEMNITY  CASE 


321 


had  given  rise,”  that  this  sum  of  91,000  Turkish  pounds  was  exactly 
the  sum  which  was  then  due  on  the  principal  and  that  thus  moratory 
interest  was  not  considered ; that  on  October  3d  of  the  same  year, 
1894,  Turkey,  about  to  make  a payment  on  account,  of  50,000 
pounds,  announced  to  the  Embassy,  without  meeting  with  any  ob- 
jections, that  the  Ottoman  Bank  “will  guarantee  payment  of  the 
balance  of  41,000  Turkish  pounds”;  that  on  January  13/25,  1896, 
the  Embassy  again  used  the  same  term,  balance  of  the  indemnity, 
in  protesting  against  the  handing  over  by  Turkey  to  the  Ottoman 
Bank  assignments  of  revenues  which  were  already  pledged  to  the 
Imperial  Russian  Government  for  the  payment  of  the  war  indem- 
nity; that  on  February  11th  of  the  same  year,  1896,  at  the  time  of 
the  discussion  of  the  resources  to  be  furnished  to  the  Ottoman 
Bank,  the  Sublime  Porte  mentioned,  in  a note  addressed  to  the  Em- 
bassy, “the  43,978  Turkish  pounds,  representing  the  balance  of  the 
indemnity” ; that  a few  days  later,  February  10/22,  the  Embassy 
replied,  making  use  of  the  same  words  balance  of  the  indemnity ; 
and  that  on  May  28th  the  Ottoman  Ministry  of  Foreign  Affairs 
mentioned  once  more  “the  sum  of  43,978  Turkish  pounds  repre- 
senting the  said  balance” ; that  the  same  was  true  of  a note  of  the 
Embassy  dated  April  25/May  8,  1900,  although  more  than  four 
years  had  elapsed  between  this  communication  and  the  communi- 
cation of  1896,  and  that  the  question  of  interest  should  have  been 
again  called  to  attention  in  some  way  after  so  long  an  interval ; that 
this  same  expression,  balance  of  the  indemnity,  appears  in  the  note 
of  the  Sublime  Porte  of  July  5,  1900;  that,  finally,  on  March  3/16, 
1901,  the  Russian  Embassy,  after  having  stated  that  the  Ottoman 
Bank  had  not  supplied  further  funds  “for  the  payment  of  the 
43,978  Turkish  pounds,  the  amount  of  the  balance  of  the  indemnity 
due  to  Russian  subjects,”  asked  that  categorical  orders  be  sent  to 
the  proper  person  “for  the  payment  without  further  delay  ‘of  the 
above-mentioned  sums’  ” ; that  this  balance,  or  practically  this 
amount,  having  been  held  by  the  Ottoman  Bank  at  the  disposal  of 
the  Embassy,  it  was  not  until  several  months  later,  June  23/July  6, 
that  the  Embassy  transmitted  to  the  Sublime  Porte  a request  of 
“those  interested,”  demanding  payment  of  some  twenty  million 
francs  for  interest  on  account  of  delayed  payments,  expressing  the 
hope  that  the  Sublime  Porte  “will  not  hesitate  to  recognize  in  prin- 


322 


THE  HAGUE  COURT  REPORTS 


ciple  the  just  grounds  for  the  claim,”  except  “to  refer  the  examina- 
tion of  the  details  to  a”  mixed  Russo-Turkish  “commission” ; that 
in  short,  for  eleven  years  and  more,  and  up  to  a date  after  the 
payment  of  the  balance  of  the  principal,  there  had  not  only  been  no 
question  of  interest  between  the  two  Governments,  but  mention 
had  been  made  again  and  again  of  only  the  balance  of  the  prin- 
cipal. 

When  the  tribunal  recognized  that,  according  to  the  general  prin- 
ciples and  custom  of  public  international  law,  there  was  a similarity 
between  the  condition  of  a State  and  that  of  an  individual,  which 
are  debtors  for  a clear  and  exigible  conventional  sum,  it  is  equitable 
and  juridical  also  to  apply  by  analogy  the  principles  of  private  law 
common  to  cases  where  the  demand  for  payment  must  be  considered 
as  removed  and  the  benefit  to  be  derived  therefrom  as  eliminated. 
In  private  law,  the  effects  of  demand  for  payment  are  eliminated 
: when  the  creditor,  after  having  made  legal  demand  upon  the  debtor, 
I grants  one  or  more  extensions  for  the  payment  of  the  principal  ob- 
> ligation,  without  reserving  the  rights  acquired  by  the  legal  demand 
(Toullier-Duvergier,  Droit  frangais,  vol.  iii,  p.  159,  No,  256),  or 
again,  when  “the  creditor  does  not  follow  up  the  summons  to  the 
debtor,”  and  “these  rules  apply  to  interest-damages,  and  also  to  in- 
terest due  for  the  non-fulfilment  of  an  obligation  ...  or  for 
delay  in  its  fulfilment”  (Duranton,  Droit  frangais,  x,  p.  470;  Aubry 
and  Rau,  Droit  Cizfil,  1871,  iv,  p.  99;  Berney,  De  la  demeure,  etc., 
Lausanne,  1886,  p.  62 ; Windscheid,  Lehrbuch  des  Pandektenrechts, 
1879,  p.  99;  Demolombe,  x,  p.  49;  Laronbiere  i,  art.  1139,  No.  22, 
etc. ) . 

In  the  relations  between  the  Imperial  Russian  Government  and 
the  Sublime  Porte,  Russia  therefore  renounced  its  right  to  interest, 
since  its  Embassy  repeatedly  accepted  without  discussion  or  reser- 
vation and  mentioned  again  and  again  in  its  own  diplomatic  cor- 
respondence the  amount  of  the  balance  of  the  indemnity  as  identical 
with  the  amount  of  the  balance  of  the  principal.  In  other  words, 
the  correspondence  of  the  last  few  years  proves  that  the  two  par- 
ties interpreted,  in  fact,  the  acts  of  1879  as  implying  that  the  pay- 
ment of  the  balance  of  the  principal  and  the  payment  of  the  bal- 
ance to  which  the  claimants  had  a right  were  identical,  and  this 


THE  RUSSIAN  INDEMNITY  CASE 


323 


implied  the  relinquishment  of  the  right  to  interest  or  moratory  in- 
terest-damages. 

The  Imperial  Russian  Government  can  not,  when  the  principal 
of  the  indemnity  has  been  paid  or  placed  at  its  disposal,  validly  re- 
consider one-sidedly  an  interpretation  accepted  and  practised  in  its 
name  by  its  Embassy. 

Ill 

In  Conclusion 

The  arbitral  tribunal,  basing  its  conclusion  upon  the  statements 
of  law  and  fact  which  precede,  is  of  the  opinion 

That  in  principle  the  Imperial  Ottoman  Government  was  liable 
to  moratory  indemnities  to  the  Imperial  Russian  Government  from 
G December  31,  1890/January  12,  1891,  the  date  of  the  receipt  of  the 
y explicit  and  regular  demand  for  payment. 

But  that,  in  fact,  the  benefit  to  the  Imperial  Russian  Government 
of  this  legal  demand  having  ceased  as  a result  of  the  subsequent  re- 
linquishment by  its  Embassy  at  Constantinople,  the  Imperial  Ot- 
toman Government  is  not  held  liable  to  pay  interest-damages  by 
reason  of  the  dates  on  which  the  payment  of  the  indemnities  was 
made. 

And,  consequently,  decides  that  a negative  reply  is  made  to  ques- 
tion 1 of  Article  3 of  the  compromis,  thus  stated:  “Whether  or 

not  the  Imperial  Ottoman  Government  must  pay  the  Russian  claim- 
ants interest-damages  by  reason  of  the  dates  on  which  the  said  Gov- 
ernment made  payment  of  the  indemnities  determined  in  pursuance 
of  Article  5 of  the  treaty  of  January  27/February  8,  1879,  as  well 
as  of  the  protocol  of  the  same  date?” 

Done  at  The  Hague,  in  the  building  of  the  Permanent  Court  of 
Arbitration,  November  11,  1912. 

President:  Lardy 

Secretary  General:  Michiels  van  Verduynen 

.9  ecretary : Roell 


324 


THE  HAGUE  COURT  REPORTS 


AGREEMENT  FOR  ARBITRATION 

Compromis  of  arbitration  between  the  Imperial  Russian  Government 
and  the  Imperial  Ottoman  Government. — Signed  at  Constantinople, 
July  22/ August  4,  ipio.^ 

The  Imperial  Russian  Government  and  the  Imperial  Ottoman  Gov- 
ernment, co-signatories  of  the  Hague  Convention  of  October  18,  1907, 
for  the  pacific  settlement  of  international  disputes : 

Considering  the  provisions  of  Article  5 of  the  treaty  signed  at  Con- 
stantinople between  Russia  and  Turkey,  January  27/February  8,  1879, 
as  follows : 

The  claims  of  Russian  subjects  and  institutions  in  Turkey  for 
indemnity  on  account  of  damages  sufifered  during  the  war  will  be 
paid  as  soon  as  they  are  examined  by  the  Russian  Embassy  at 
Constantinople  and  transmitted  to  the  Sublime  Porte. 

The  total  of  these  claims  shall  in  no  case  exceed  26,750,000 
francs. 

Claims  may  be  presented  to  the  Sublime  Porte  beginning  one 
year  from  the  date  on  which  ratifications  are  exchanged,  and  no 
claims  will  be  admitted  which  are  presented  after  the  expiration 
of  two  years  from  that  date; 

Considering  the  additional  explanation  contained  in  the  protocol 
bearing  the  same  date: 

As  to  the  expiration  of  one  year,  fixed  by  this  article  as  the  date 
from  which  claims  may  be  presented  to  the  Sublime  Porte,  it  is 
understood  that  one  exception  will  be  made  in  favor  of  the  Rus- 
sian Hospital’s  claim,  amounting  to  11,200  pounds  sterling; 

Considering  that  a disagreement  has  arisen  between  the  Imperial 
Russian  Government  and  the  Imperial  Ottoman  Government  as  to  the 
questions  of  law  arising  from  the  dates  on  which  the  Imperial  Otto- 
man Government  made  the  following  payments  on  the  amounts  of  the 
indemnities  regularly  presented  in  pursuance  of  the  said  Article  5, 
to  wit : 

Turkish  pounds  Piastres  Paras 


In  1884  50,000 

In  1889  50,000 

In  1893  75,000 

In  1894  50,000 

In  1902  42,438  67 


^American  Journal  of  International  Law,  vol.  7,  Supplement,  p.  62.  For  the 
original  French  text,  see  Appendix,  p.  551. 


THE  RUSSIAN  INDEMNITY  CASE 


325 


Considering  that  the  Imperial  Russian  Government  holds  that  the 
Imperial  Ottoman  Government  is  responsible  to  the  Russian  claimants 
for  interest-damages  because  of  the  delay  in  settling  its  debt ; 

Considering  that  the  Imperial  Ottoman  Government  contests,  both 
in  fact  and  in  law,  the  grounds  of  the  Imperial  Russian  Government’s 
contention ; 

Considering  that  it  had  not  been  possible  to  settle  the  dispute 
through  diplomatic  channels ; 

And  having  resolved,  in  conformity  with  the  stipulations  of  the  said 
Hague  Convention,  to  end  this  controversy  by  submitting  the  question 
to  arbitration ; 

Have  authorized  to  this  effect  their  representatives  designated  be- 
low, to  wit: 

For  Russia, 

His  Excellency  Monsieur  Tcharikow,  Ambassador  of  His  Majesty 
the  Emperor  of  Russia  at  Constantinople ; 

For  Turkey, 

His  Excellency  Rifaat  Pasha,  Minister  of  Foreign  Affairs,  to  con- 
clude the  following  compromis: 

Article  1 

The  Powers  in  controversy  decide  that  the  arbitral  tribunal  to  which 
the  question  will  be  submitted  as  a last  resort  shall  be  composed  of 
five  members,  who  shall  be  appointed  in  the  following  manner: 

Each  party  must  name,  as  soon  as  possible  and  within  two  months 
from  the  date  of  this  compromis,  two  arbitrators,  and  the  four  arbi- 
trators thus  appointed  shall  choose  an  umpire.  In  case  the  four  arbi- 
trators shall  not,  within  two  months  of  their  appointment,  have  chosen 
an  umpire  either  unanimously  or  by  a majority,  the  choice  of  an  um- 
pire devolves  upon  a third  party  agreed  upon  by  the  parties.  If,  after 
the  lapse  of  two  more  months,  an  agreement  is  not  reached  upon  this 
question,  each  party  designates  a different  Power  and  the  umpire  is 
chosen  by  the  Powers  thus  designated. 

If,  after  the  lapse  of  two  more  months,  these  two  Powers  have  not 
been  able  to  agree,  each  of  them  presents  two  candidates  selected  from 
the  list  of  members  of  the  Permanent  Court,  exclusive  of  the  members 
of  the  said  Court  selected  by  the  two  Powers  or  by  the  parties  and 
being  nationals  neither  of  the  former  nor  of  the  latter.  These  candi- 
dates, moreover,  can  not  belong  to  the  nationality  of  the  arbitrators 


326 


THE  HAGUE  COURT  REPORTS 


appointed  by  the  parties  in  the  present  arbitration.  The  umpire  is 
chosen  by  lot  from  the  two  candidates  thus  presented. 

The  drawing  of  lots  will  be  done  by  the  International  Bureau  of  the 
Permanent  Court  at  The  Hague. 

Article  2 

The  Powers  in  controversy  will  be  represented  before  the  arbitral 
tribunal  by  agents,  counsel  or  advocates,  in  conformity  with  the  pro- 
visions of  Article  62  of  the  Hague  Convention  of  1907  for  the  pacific 
settlement  of  international  disputes. 

These  agents,  counsel  or  advocates  will  be  appointed  by  the  parties 
in  ample  time  to  prevent  any  delay  in  the  arbitration. 

Article  3 

The  questions  in  dispute  and  upon  which  the  parties  ask  the  arbitral 
tribunal  to  render  a definitive  decision  are  as  follows : 

I.  Whether  or  not  the  Imperial  Ottoman  Government  must  pay  the 
Russian  claimants  interest-damages  by  reason  of  the  dates  on  which 
the  said  Government  made  payment  of  the  indemnities  determined  in 
pursuance  of  Article  5 of  the  treaty  of  January  27/February  8,  1879, 
as  well  as  of  the  protocol  of  the  same  date? 

II.  In  case  the  first  question  is  decided  in  the  affirmative,  what 
should  be  the  amount  of  these  interest-damages? 

Article  4 

The  arbitral  tribunal,  as  soon  as  it  is  constituted,  shall  meet  at  The 
Hague  at  a date  to  be  determined  by  the  arbitrators  and  within  one 
month  from  the  appointment  of  the  umpire.  After  settling,  in  con- 
formity with  the  letter  and  the  spirit  of  the  Hague  Convention  of 
1907,  all  questions  of  procedure  which  may  arise  and  which  are  not 
provided  for  in  the  present  compromis,  the  said  tribunal  shall  deter- 
mine the  date  of  its  next  meeting. 

However,  it  is  agreed  that  the  tribunal  can  not  open  the  arguments 
on  the  questions  in  dispute,  either  before  the  expiration  of  two  months 
or  after  the  expiration  of  three  months  from  the  filing  of  the  counter- 
case or  the  counter-reply  provided  for  by  Article  6 and,  later,  by 
the  arrangements  set  forth  in  Article  8. 


THE  RUSSIAN  INDEMNITY  CASE 


327 


Article  5 

The  arbitral  procedure  will  include  two  distinct  phases : the  written 
statement  of  the  case ; and  the  arguments  which  will  consist  in  the  oral 
development  of  the  pleas  of  the  parties  before  the  tribunal. 

French  is  the  only  language  which  the  tribunal  will  use  and  which 
may  be  used  before  it. 

Article  6 

Within  eight  months  at  most  after  the  date  of  the  present  com- 
promis,  the  Imperial  Russian  Government  must  deliver  to  each  of  the 
members  of  the  arbitral  tribunal  one  complete  copy,  and  to  the  Im- 
perial Ottoman  Government  ten  complete  copies,  written  or  printed,  of 
its  case,  containing  every  argument  in  support  of  its  claim  with  refer- 
ence to  the  two  questions  mentioned  in  Article  3. 

Within  eight  months  at  most  after  this  delivery,  the  Imperial  Otto- 
man Government  must  deliver  to  each  of  the  members  of  the  tribunal, 
as  well  as  to  the  Imperial  Russian  Government,  the  same  number,  as 
specified  above,  of  complete  copies,  written  or  printed,  of  its  counter- 
case, with  all  supporting  arguments,  but  confining  itself  to  question 
1 of  Article  3. 

Within  one  month  after  this  delivery  the  Imperial  Russian  Govern- 
ment will  inform  the  president  of  the  arbitral  tribunal  whether  it  in- 
tends to  present  a reply.  In  that  case,  it  will  have  an  extension  of 
three  months  at  most  from  the  date  of  such  notification  in  which  to 
communicate  the  said  reply  under  the  same  conditions  as  the  case. 
The  Imperial  Ottoman  Government  will  then  have  an  extension  of 
four  months  from  the  date  of  this  communication  to  present  its  coun- 
ter-reply, under  the  same  conditions  as  the  counter-case. 

The  extension  fixed  by  the  present  article  may  be  lengthened  if 
agreed  to  by  both  parties,  or  if  the  tribunal  deems  it  necessary  in  order 
to  reach  a just  decision. 

But  the  tribunal  will  not  take  into  consideration  cases,  counter-cases 
or  other  communications  which  are  presented  to  it  by  the  parties  after 
the  expiration  of  the  last  extension  which  it  has  granted. 

Article  7 

If  in  the  cases  or  other  papers  exchanged  either  of  the  parties  has 
referred  or  alluded  to  a document  or  paper  of  which  it  alone  is  in 
possession  and  of  which  it  has  not  furnished  a copy,  it  must  furnish 


328 


THE  HAGUE  COURT  REPOETf. 


the  Other  party  with  a copy,  if  the  other  party  so  requests,  within 
thirty  days. 

Article  8 

In  case  the  arbitral  tribunal  decides  question  1 of  Article  3 in  the 
affirmative,  it  must,  before  taking  up  question  2 of  the  same  article, 
grant  the  parties  furtlier  extensions,  which  may  not  be  less  than  three 
months  each,  for  the  presentation  and  exchange  of  their  demands  and 
arguments  in  support  of  them. 

Article  9 

The  decisions  of  the  tribunal  on  the  first,  and  contingently  on  the 
second  question  at  issue,  shall  be  rendered,  in  so  far  as  possible,  within 
one  month  from  the  closing  by  the  president  of  the  arguments  relating 
to  each  of  these  questions. 


Article  10 

The  judgment  of  the  arbitral  tribunal  shall  be  final  and  must  be 
executed  strictly  and  without  any  delay. 

Article  11 

Each  party  bears  its  own  expenses  and  half  of  the  expenses  of  the 
tribunal. 

Article  12 

Whatever  questions  arise  in  this  arbitration  which  are  not  provided 
for  by  the  present  comproniis  shall  be  governed  by  the  stipulations  of 
the  Hague  Convention  for  the  pacific  settlement  of  international  dis- 
putes, except,  however,  those  articles  the  acceptance  of  which  has  been 
reserved  by  the  Imperial  Ottoman  Government. 

Done  at  Constantinople,  July  22/August  4,  1910. 

(Signed)  Rifaat 
(Sigrned)  N.  Tcharykow 


THE  CARTHAGE  CASE 

between 

FRANCE  and  ITALY 
Decided  May  6,  1913 

Syllabus 

During  the  Turko-Italian  war  in  Africa  in  1912,  the  Italians  estab- 
lished a strict  watch  against  the  possibility  of  military  supplies  or  rein- 
forcements of  any  kind  reaching  the  Turks  in  Tripoli  by  way  of  Tunis. 
As  the  result,  on  January  16,  1912,  the  Carthage,  a steamer  belonging 
to  the  Compagnie  Generate  Transatlantique,  was  stopped  by  an  Italian 
war  vessel  while  on  its  way  from  Marseilles  to  Tunis,  on  account  of 
having  on  board  an  aeroplane  and  parts  of  another,  destined  to  a 
private  consignee  in  Tunis,  which  the  Italians  claimed  was  contraband 
of  war.  It  being  impossible  to  transfer  the  aeroplane  from  one  ship 
to  another,  the  Carthage  was  conveyed  to  Cagliari,  where  it  was  de- 
tained until  January  20,  1912.  The  release  of  the  vessel  was  de- 
manded by  the  French  Ambassador  at  Rome.  The  aeroplane  and 
parts  were  landed  by  order  of  the  company  and  the  Carthage  was  al- 
lowed to  resume  her  voyage. 

Upon  assurance  to  the  Italian  Government  that  the  aeroplane  was 
intended  purely  for  exhibition  purposes  and  that  there  was  no  inten- 
tion on  the  part  of  the  owner  to  offer  his  services  to  the  Ottoman 
Government,  the  aeroplane  was  released  on  January  21,  1912.  The 
French  Government  demanded  in  addition  reparation  for  the  insult  to 
the  French  flag  and  for  the  violation  of  international  law  and  conven- 
tions between  the  two  Governments  and  damages  for  the  injury  to  the 
private  parties  interested  in  the  vessel  and  its  voyage.  The  Italian 
Government  made  a counter-claim  against  France  for  the  amount  of 
the  expenses  caused  by  the  seizure  of  the  Carthage. 

The  controversy  was  referred  for  settlement  to  a tribunal  selected 
from  the  members  of  the  Permanent  Court  of  Arbitration  at  The 
Hague,  under  a compromis  dated  March  6,  1912.^  The  tribunal  was 
composed  of  K.  Hj.  L.  Hammarskjold  of  Denmark;  Louis  Renault  of 
France;  Guido  Fusinato  of  Italy;  J.  Kriege  of  Germany,  and  Baron 
Michel  de  Taube  of  Russia.  Its  sessions  began  March  31,  1913,  and 
ended  May  6,  1913,  the  decision  being  rendered  on  the  latter  date. 
The  tribunal  held  that,  while  belligerents  have  as  a general  rule  the 
right  of  visit  and  search,  to  determine  if  contraband  is  carried  by 
neutral  vessels,  the  legality  of  acts  committed  after  the  search  depends 
upon  the  presence  of  contraband  or  sufficient  legal  reasons  to  believe 

^Post,  p.  336. 


330 


THE  HAGUE  COURT  REPORTS 


that  it  exists ; that  the  information  in  the  possession  of  the  Italian 
authorities  as  to  the  hostile  destination  of  the  aeroplane,  which  was  an 
essential  element  to  establish  its  contraband  nature,  was  not  legally 
sufficient  and  that,  therefore,  the  capture  of  the  vessel  and  its  convoy 
to  Cagliari  and  detention  there  were  illegal.  The  French  Government 
was  awarded  the  sum  of  160,000  francs  in  satisfaction  for  the  dam- 
ages suffered  by  the  private  parties  interested  in  the  vessel  and  its 
voyage.  The  national  claims  of  the  respective  Governments  were, 
however,  disallowed. 


AWARD  OF  THE  TRIBUNAL 

Award  of  the  arbitral  tribunal  in  the  case  of  the  French  mail  steamer 

“Carthage.” — The  Hague,  May  6,  1913.^ 

Considering  that,  by  an  agreement  dated  January  26,  1912,^  and 
by  a compromis  dated  the  following  6th  of  March,®  the  Government 
of  the  French  Republic  and  the  Royal  Italian  Government  have 
agreed  to  submit  to  an  arbitral  tribunal  composed  of  five  members 
the  decision  of  the  following  questions : 

1.  Were  the  Italian  naval  authorities  within  their  rights  in  pro- 
ceeding, as  they  did,  to  the  capture  and  temporary  detention  of  the 
French  mail  steamer  Carthage? 

2.  What  should  be  the  pecuniary  or  other  consequences,  follow- 
ing the  decision  of  the  preceding  question? 

Considering  that,  in  accordance  with  this  compromis,  the  two 
Governments  have  chosen,  by  common  consent,  the  following  mem- 
bers of  the  Permanent  Court  of  Arbitration  to  constitute  the  ar- 
bitral tribunal : 

His  Excellency  Guido  Fusinato,  Doctor  of  Law,  Minister  of 
State,  former  Minister  of  Public  Instruction,  honorary  professor 
of  international  law  in  the  University  of  Turin,  Deputy,  Councilor 
of  State; 

Mr.  Knut  Hjalmar  Leonard  Hammarskjold,  Doctor  of  Law,  for- 
merly Minister  of  Justice,  formerly  Minister  of  Public  Worship  and 
Instruction,  formerly  Envoy  Extraordinary  and  Minister  Plenipo- 
tentiary at  Copenhagen,  formerly  President  of  the  Court  of  Ap- 

^ American  Journal  of  International  Law,  vol.  7,  p.  623.  For  the  original 
French  text,  see  Appendix,  p.  556. 

^Post,  p.  337. 


^Post,  p.  336. 


THE  CARTHAGE  CASE 


331 


peals  of  Jonkoping,  formerly  professor  in  the  Facult}'^  of  Law  of 
Upsala,  Governor  of  the  Province  of  Upsala ; 

Mr.  Kriege,  Doctor  of  Law,  at  present  Confidential  Counselor  of 
Legation  and  Director  in  the  Department  of  Foreign  Affairs,  Pleni- 
potentiary in  the  German  Federal  Council; 

Mr.  Louis  Renault,  Minister  Plenipotentiary,  member  of  the  In- 
stitute, professor  in  the  Faculty  of  Law  of  the  University  of  Paris 
and  of  the  Ecole  Libre  des  Sciences  Politiques,  Jurisconsult  in  the 
Ministry  of  Foreign  Affairs; 

His  Excellency  Baron  Michel  de  Taube,  Doctor  of  Law,  Assist- 
ant Minister  of  Public  Instruction  of  Russia,  Councilor  of  State; 

That  the  two  Governments  have,  at  the  same  time  designated 
Mr.  Hammarskjold  to  perform  the  duties  of  president. 

Considering  that,  in  accordance  with  the  conipromis  of  March  6, 
1912,  the  cases  and  counter-cases  have  been  duly  exchanged  by 
the  parties  and  communicated  to  the  arbitrators ; 

Considering  that  the  tribunal,  constituted  as  above,  met  at  The 
Hague  on  March  31,  1913; 

That  the  two  Governments  have  respectively  appointed  as  agents 
and  counsel. 

The  Government  of  the  French  Republic: 

Mr.  Henri  Fromageot,  advocate  in  the  Court  of  Appeals  of 
Paris,  assistant  jurisconsult  in  the  Ministry  of  Foreign  Affairs, 
counsel  in  international  law  for  the  Navy  Department,  agent; 

Mr.  Andre  Hesse,  advocate  in  the  Court  of  Appeals  of  Paris, 
member  of  the  Chamber  of  Deputies,  counsel; 

The  Royal  Italian  Government : 

Mr.  Arturo  Ricci-Busatti,  Envoy  Extraordinary  and  Minister 
Plenipotentiary,  Chief  of  the  Bureau  of  Disputed  Claims  and  Legis- 
lation of  the  Royal  Ministry  of  Foreign  Affairs,  agent; 

Mr.  Dionisio  Anzilotti,  professor  of  international  law  in  the 
University  of  Rome,  counsel. 

Considering  that  the  agents  of  the  parties  have  presented  the  fol- 
lowing demands  to  the  tribunal,  to-wit. 

The  agent  of  the  Government  of  the  French  Republic: 

May  it  please  the  tribunal 

As  to  the  first  question  propounded  by  the  compromis, 


332 


THE  HAGUE  COURT  REPORTS 


To  say  that  the  Italian  naval  authorities  were  not  within  their 
rights  in  proceeding  as  they  did  to  the  capture  and  temporary 
detention  of  the  French  mail  steamer  Carthage; 

In  consequence  and  as  to  the  second  question, 

To  say  that  the  Royal  Italian  Government  shall  be  obliged  to  pay 
to  the  Government  of  the  French  Republic  as  damages: 

1.  The  sum  of  one  franc  for  the  offense  against  the  French  flag; 

2.  The  sum  of  one  hundred  thousand  francs  as  reparation  for  the 
moral  and  political  injury  resulting  from  the  failure  to  observe  in- 
ternational common  law  and  conventions  binding  upon  both  Italy 
and  France; 

3.  The  sum  of  five  hundred  and  seventy-six  thousand,  seven  hun- 
dred and  thirty-eight  francs,  twenty-three  centimes,  the  total 
amount  of  the  losses  and  damages  claimed  by  private  parties  inter- 
ested in  the  steamer  and  its  voyage; 

To  say  that  the  above-mentioned  sum  of  one  hundred  thousand 
francs  shall  be  paid  to  the  Government  of  the  Republic  for  the 
benefit  of  such  work  or  institution  of  international  interest  as  it 
may  please  the  tribunal  to  indicate; 

In  the  second  place,  and  in  case  the  tribunal  does  not  consider 
itself  at  present  sufficiently  informed  as  to  the  grounds  for  the  in- 
dividual claims. 

To  say  that  one  or  more  of  its  members  to  whom  it  may  be  pleased 
to  entrust  this  duty,  shall  proceed,  in  the  presence  of  the  agents  and 
counsel  of  the  two  Governments,  in  the  chamber  where  its  deliber- 
ations take  place,  to  the  examination  of  each  of  the  said  individual 
claims; 

In  all  cases,  and  by  the  application  of  Article  9 of  the  compromis, 

To  say  that,  after  the  expiration  of  three  months  from  the  day 
of  the  award,  the  sums  to  be  paid  by  the  Royal  Italian  Government 
and  not  yet  paid  shall  bear  interest  at  the  rate  of  four  per  cent  per 
annum. 

And  the  agent  of  the  Royal  Italian  Government: 

May  it  please  the  tribunal 

As  to  the  first  question  propounded  by  the  compromis. 

To  say  and  decide  that  the  Italian  naval  authorities  were  entirely 


THE  CARTHAGE  CASE 


333 


within  their  rights  in  proceeding,  as  they  did,  to  the  capture  and 
temporary  detention  of  the  French  mail  steamer  Carthage; 

In  consequence  and  as  to  the  second  question. 

To  say  and  decide  that  the  French  Government  shall  be  obliged 
to  pay  to  the  Italian  Government  the  sum  of  two  thousand  and 
seventy-two  francs,  twenty-five  centimes,  the  amount  of  expense 
caused  by  the  seizure  of  the  Carthage; 

To  say,  that,  upon  the  expiration  of  three  months  from  the  day 
of  the  award,  the  sum  to  be  paid  by  the  Government  of  the  French 
Republic  will,  if  it  has  not  yet  been  paid,  bear  interest  at  the  rate 
of  four  per  cent  per  annum. 

Considering  that,  after  the  tribunal  had  heard  the  oral  statements 
of  the  agents  of  the  parties^  and  the  explanations  which  they  fur- 
nished upon  its  request,  the  arguments  were  duly  declared  closed. 

In  the  Matter  of  Fact 

Considering  that  the  French  mail  steamer  Carthage,  of  the  Com- 
pagnie  Generate  Transatlantique,  in  the  course  of  a regular  trip  be- 
tween Marseilles  and  Tunis,  was  stopped  on  January  16,  1912,  at 
6:30  a.m.,  in  the  open  sea,  seventeen  miles  from  the  coast  of  Sar- 
dinia, by  the  destroyer  Agordat  of  the  Royal  Italian  Navy; 

That  the  commander  of  the  Agordat,  having  ascertained  that 
there  was  on  board  the  Carthage  an  aeroplane  belonging  to  one 
Duval,  a French  aviator,  and  consigned  to  his  address  at  Tunis, 
declared  to  the  captain  of  the  Carthage  that  the  aeroplane  in  ques- 
tion was  considered  by  the  Italian  Government  contraband  of  war; 

That,  as  it  was  impossible  to  transfer  the  aeroplane  from  one 
vessel  to  the  other,  the  captain  of  the  Carthage  received  the  order  to 
follow  the  Agordat  to  Cagliari,  where  he  was  detained  until  Janu- 
ary 20; 

In  the  Matter  of  Law 

Considering  that,  according  to  the  principles  universally  acknowl- 
edged, a belligerent  war-ship  has,  as  a general  rule  and  except  under 
special  circumstances,  the  right  to  stop  a neutral  commercial  vessel 
in  the  open  sea  and  proceed  to  search  it  to  see  whether  it  is  observ- 
ing the  rules  of  neutrality,  especially  as  to  contraband; 


334 


THE  HAGUE  COURT  REPORTS 


Considering,  on  the  other  hand,  that  the  legality  of  every  act 
which  goes  beyond  a mere  search  depends  upon  the  existence  either 
of  a trade  in  contraband  or  of  sufficient  reasons  to  believe  that  such 
a trade  exists. 

That,  in  this  respect,  the  reasons  must  be  of  a juridical  nature ; 

Considering  that  in  this  case  the  Carthage  was  not  only  stopped 
and  searched  by  the  Agordat;  but  also  taken  to  Cagliari,  seques- 
trated and  detained  for  a certain  time,  after  which  it  was  released 
by  the  administrative  authority; 

Considering  that  the  purpose  of  the  measures  taken  against  the 
French  mail  steamer  was  to  prevent  the  transportation  of  the  aero- 
plane belonging  to  one  Duval,  and  shipped  on  the  Carthage  to  the 
address  of  this  same  Duval  at  Tunis; 

That  this  aeroplane  was  considered  by  the  Italian  authorities  con- 
traband of  war,  both  by  its  nature  and  by  its  destination,  which  in 
reality  might  have  been  for  the  Ottoman  forces  in  Tripolitana; 

Considering,  in  so  far  as  concerns  the  hostile  destination  of  the 
aeroplane,  an  essential  element  of  its  seizability. 

That  the  information  possessed  by  the  Italian  authorities  was  of 
too  general  a nature  and  had  too  little  connection  with  the  aeroplane 
in  question  to  constitute  sufficient  juridical  reasons  to  believe  in  a 
hostile  destination  and,  consequently,  to  justify  the  capture  of  the 
vessel  which  was  transporting  the  aeroplane; 

That  the  despatch  from  Marseilles,  relating  certain  remarks  of 
the  mechanician  of  Mr.  Duval,  did  not  reach  the  Italian  authorities 
until  after  the  Carthage  had  been  stopped  and  taken  to  Cagliari  and 
could  not,  therefore,  have  caused  these  measures;  that,  moreover, 
the  despatch  could  not  in  any  case  have  been  considered  a sufficient 
reason,  in  the  light  of  what  has  previously  been  said; 

Considering  that,  this  conclusion  being  reached,  the  tribunal  is 
not  called  upon  to  inquire  whether  or  not  the  aeroplane  should  by 
its  nature  be  included  in  articles  of  contraband,  either  conditional 
or  absolute,  or  to  examine  whether  the  theory  of  a continuous  voy- 
age should  or  should  not  be  applicable  in  this  case; 

Considering  that  the  tribunal  finds  it  likewise  superfluous  to  ex- 
amine the  question  whether,  at  the  time  of  the  measures  taken 
against  the  Carthage  there  were  irregularities  of  form,  and  if,  in 


THE  CARTHAGE  CASE 


335 


case  there  were,  these  irregularities  were  of  a kind  to  vitiate  meas- 
ures which  would  otherwise  have  been  legal ; 

Considering  that  the  Italian  authorities  demanded  surrender  of 
the  mail  only  that  it  might  reach  its  destination  as  quickly  as  pos- 
sible. 

That  this  demand,  which  apparently  was  at  first  misunderstood 
by  the  captain  of  the  Carthage,  was  in  conformity  with  the  Conven- 
tion of  October  18,  1907,  relative  to  certain  restrictions  in  the  ex- 
ercise of  the  right  of  capture,  which,  however,  was  not  ratified  by 
the  belligerents. 

Upon  the  request  that  the  Royal  Italian  Government  be  con- 
demned to  pay  to  the  Government  of  the  French  Republic  as  dam- 
ages : 

1.  The  sum  of  one  franc  for  the  offense  against  the  French  flag; 

2.  The  sum  of  one  hundred  thousand  francs  as  reparation  for  the 
moral  and  political  injury  resulting  from  the  failure  to  observe  in- 
ternational common  law  and  conventions  binding  upon  both  France 
and  Italy, 

Considering  that,  in  case  a Power  should  fail  to  fulfil  its  obliga- 
tions, whether  general  or  special,  to  another  Power,  the  establish- 
ment of  this  fact,  especially  in  an  arbitral  award,  constitutes  in 
itself  a serious  penalty; 

That  this  penalty  is  made  heavier  in  such  case  by  the  payment 
of  damages  for  material  losses; 

That,  as  a general  rule  and  excluding  special  circumstances,  these 
penalties  appear  to  be  sufficient; 

That,  also,  as  a general  rule,  the  introduction  of  a further  pecun- 
iary penalty  appears  to  be  superfluous  and  to  go  beyond  the  purposes 
of  international  jurisdiction; 

Considering  that,  by  the  application  of  what  has  just  been  said, 
the  circumstances  of  the  present  case  are  not  such  as  to  call  for 
such  a supplementary  penalty;  that,  without  further  examination, 
there  is  no  occasion  to  comply  with  the  above-mentioned  request. 

Upon  the  request  of  the  French  agent  that  the  Italian  Govern- 
ment be  condemned  to  pay  the  sum  of  five  hundred  and  seventy-six 
thousand  seven  hundred  and  thirty-eight  francs,  twenty-three  cen- 
times, the  total  amount  of  the  losses  and  damages  claimed  by  private 
parties  interested  in  the  vessel  and  its  voyage, 


336 


THE  HAGUE  COURT  REPORTS 


Considering  that  the  request  for  indemnity  is,  in  principle,  justi- 
fied ; 

Considering  that  the  tribunal,  after  having  heard  the  concurring 
explanations  of  two  of  its  members  charged  by  it  to  investigate  the 
said  claims,  has  fixed  the  amount  due  the  Compagnie  Gcncrale 
Transatlantiquc  at  seventy-five  thousand  francs,  the  amount  due 
the  aviator  Duval  and  his  associates  at  twenty-five  thousand  francs ; 
and,  finally,  the  amount  due  the  passengers  and  shippers  at  sixty 
thousand  francs;  making  a total  of  one  hundred  and  sixty  thousand 
francs  to  be  paid  by  the  Italian  Government  to  the  French  Govern- 
ment. 

For  these  reasons 

The  arbitral  tribunal  declares  and  pronounces  as  follows: 

The  Italian  naval  authorities  were  not  within  their  rights  in  pro- 
ceeding, as  they  did,  to  the  capture  and  temporary  detention  of  the 
French  mail  steamer  Carthcge. 

The  Royal  Italian  Government  shall  be  obliged,  within  three 
months  from  the  present  award,  to  pay  to  the  Government  of  the 
French  Republic  the  sum  of  one  hundred  and  sixty  thousand  francs, 
the  amount  of  the  losses  and  damages  suffered,  by  reason  of  the 
capture  and  seizure  of  the  Carthage,  by  the  private  parties  interested 
in  the  vessel  and  its  voyage. 

There  is  no  occasion  to  give  effect  to  the  other  claims  contained 
in  the  demands  of  the  two  parties. 

Done  at  The  Hague,  in  the  building  of  the  Permanent  Court  of 
Arbitration,  the  6th  day  of  May,  1913. 

President:  Hj.  L.  Hammarskjold 

Secretary  General:  Michiei.s  van  Verduynf.n 
Secretary:  Roell 


AGREEMENT  FOR  ARBITRATION 

Compromis  of  arbitration  relative  to  the  question  raised  by  the  capture 
and  temporary  detention  of  the  French  mail  steamer  “Carthage.” — 
Signed  at  Paris,  March  6, 

The  Government  of  the  French  Republic  and  the  Royal  Italian 


‘Translation.  For  the  original  French  text,  see  Appendix,  p.  561. 


THE  CARTHAGE  CASE 


337 


Government,  having  agreed,  on  January  26,  1912,^  in  application  of  the 
arbitration  convention  of  December  25,  1903,  which  was  renewed  on 
December  24,  1908,  to  entrust  an  arbitral  tribunal  with  the  examina- 
tion of  the  capture  and  temporary  detention  of  the  French  mail 
steamer  Carthage  by  the  Italian  naval  authorities,  as  well  as  with  the 
duty  of  deciding  the  consequences  which  should  follow. 

The  undersigned,  duly  authorized  for  that  purpose,  have  agreed 
upon  the  following  compromis : 

Article  1 

An  arbitral  tribunal,  composed  as  is  hereinafter  stipulated,  is 
charged  with  the  settling  of  the  following  questions : 

1.  Were  the  Italian  naval  authorities  within  their  rights  in  pro- 
ceeding, as  they  did,  to  the  capture  and  temporary  detention  of  the 
French  mail  steamer  Carthage? 

2.  What  pecuniary  or  other  consequences  should  follow  the  decision 
of  the  preceding  question? 

Article  2 

The  tribunal  shall  be  composed  of  five  arbitrators  which  the  two 
Governments  shall  choose  from  among  the  members  of  the  Permanent 
Court  of  Arbitration  at  The  Hague,  appointing  one  of  them  to  exer- 
cise the  functions  of  umpire.^ 

Article  3 

On  June  15,  1912,  each  party  shall  deposit  with  the  Bureau  of  the 
Permanent  Court  of  Arbitration  fifteen  copies  of  its  memorial,  with 
certified  copies  of  all  papers  and  documents  which  it  intends  to  present 
in  the  case. 

The  Bureau  shall  guarantee  their  transmission  to  the  arbitrators  and 
parties,  to  w'it : two  copies  for  each  arbitrator ; three  copies  for  each 
party ; two  copies  shall  remain  in  the  archives  of  the  Bureau. 

On  August  15,  1912,  each  party  shall  deposit  in  the  same  manner 
as  above  its  counter-memorial  with  the  papers  appertaining  thereto, 
and  its  final  conclusions. 

Article  4 

Each  of  the  parties  shall  deposit  with  the  Bureau  of  the  Permanent 
Court  of  Arbitration  at  The  Hague,  at  the  same  time  that  it  deposits 

^See  post,  p.  339. 

^See  supplementary  agreement  of  April  4,  1912,  post,  p.  340. 


338 


THE  HAGUE  COURT  REPORTS 


its  memorial,  a sum  for  the  purpose  of  expenses,  which  shall  be  fixed 
by  mutual  agreement. 

Article  5 

The  tribunal  shall  meet  at  The  Hague,  upon  the  convocation  of  its 
president,  in  the  second  fortnight  of  the  month  of  September,  1912. 

Article  6 

Each  party  shall  be  represented  by  an  agent  whose  duty  it  shall  be 
to  serve  as  intermediary  between  it  and  the  tribunal. 

The  tribunal  may  demand  that  either  agent  furnish  it,  if  necessary, 
j^vith  oral  or  written  explanations,  to  which  the  agent  of  the  opposing 
party  shall  have  the  right  to  reply. 

Article  7 

The  French  language  shall  be  used  by  the  tribunal.  Each  party  may 
use  its  own  langpiage. 

Article  8 

The  award  of  the  tribunal  shall  be  rendered  with  the  least  possible 
delay  and  in  any  case  within  the  thirty  days  following  the  closing  of 
the  debates.  However,  this  period  may  be  extended  upon  the  demand 
of  the  tribunal  and  the  consent  of  the  parties. 


Article  9 


The  tribunal  is  competent  to  regulate  the  conditions  for  the  execu- 
tion of  its  award. 


Article  10 


On  all  points  not  covered  by  the  present  compromis,  the  stipulations 
of  the  Hague  Convention  for  the  pacific  settlement  of  international 
disputes,  of  October  18,  1907,  shall  be  applicable  to  the  present 
arbitration. 

Done,  in  duplicate,  at  Paris,  March  6,  1912. 

(Signed)  L.  Renault 
(Signed)  G.  Fusin.ato 


THE  CARTHAGE  CASE 


339 


ADDITIONAL  DOCUMENTS 

Joint  Note  of  the  French  Ambassador  and  the  Italian  Minister  of 

Foreign  Affairs,  concerning  the  settlement  of  the  questions  arising 

out  of  the  arrest  of  the  French  steamers  “Carthage’'  and 

“Manouba.”^ — Signed  January  26,  igi2? 

The  Ambassador  of  France  and  the  Minister  of  Foreign  Affairs  of 
Italy,  having  investigated  in  the  most  friendly  spirit  the  circumstances 
which  preceded  and  followed  the  arrest  and  search  by  an  Italian 
cruiser  of  two  French  steamers  proceeding  from  Marseilles  to  Tunis, 
are  happy  to  report,  in  thorough  accord  and  before  every  other  con- 
sideration, that  in  neither  of  the  two  countries  has  there  arisen  as  a 
result  of  these  incidents  any  feeling  contrary  to  the  sentiments  of 
sincere  and  constant  friendship  which  unite  them. 

This  report  has  led  the  two  Governments  without  difficulty  to  decide : 

1.  That  the  questions  arising  from  the  capture  and  temporary  de- 
tention of  the  steamer  Carthage  shall  be  referred  to  the  Court  of 
Arbitration  at  The  Hague  for  examination,  under  the  Franco-Italian 
arbitration  convention  of  December  23,  1903,  renewed  December  24, 
1908. 

2.  That  in  the  matter  of  the  seizure  of  the  Manouba  and  of  the  Ot- 
toman passengers  who  were  on  board,  as  this  action,  according  to  the 
Italian  Government,  was  taken  by  virtue  of  the  rights  which  it  declares 
it  possesses  according  to  the  general  principles  of  international  law  and 
Article  47  of  the  Declaration  of  London  of  1909,  the  circumstances 
under  which  this  action  was  taken  and  the  consequences  thereof  shall 
likewise  be  submitted  for  examination  to  the  high  international  Court 
established  at  The  Hague ; that,  in  order  to  restore  the  statu  quo  ante, 
in  so  far  as  concerns  the  Ottoman  passengers  who  were  seized,  the 
latter  shall  be  delivered  to  the  French  consul  at  Cagliari,  who  shall 
see  that  they  are  taken  back  to  the  place  from  which  they  sailed,  upon 
the  responsibility  of  the  French  Government,  which  Government  shall 
take  the  necessary  measures  to  prevent  Ottoman  passengers  not  be- 
longing to  the  “Red  Crescent”  but  to  fighting  forces,  from  sailing  from 
a French  port  to  Tunis  or  to  the  scene  of  military  operations. 

^For  the  Manouba  Case,  see  post,  p.  341. 

^American  Journal  of  International  Law,  vol.  7,  Supplement,  p.  176.  For  the 
original  French  text,  see  Appendix,  p.  562. 


340 


THE  HAGUE  COURT  REPORTS 


Franco-Italian  Agreement  Signed  at  Paris,  April  4,  ipi2^ 

The  Govemment  of  the  French  Republic  and  the  Royal  Italian 
Government,  having  in  mind  the  two  compromis  negotiated  March  6, 
1912,-  by  Messrs.  Louis  Renault  and  Fusinato,  for  the  purpose  of 
settling  by  arbitration  of  the  Pennanent  Court  at  The  Hague  the  in- 
cidents relative  to  the  seizure  of  the  Carthage  and  of  the  Manouba, 
declaring  their  approval  of  the  terms,  and  considering  themselves 
bound  by  their  texts ; 

Have  appointed  by  common  accord  the  following  members  of  the 
Permanent  Court  of  Arbitration  to  constitute  the  arbitral  tribunal: 

Mr.  Guido  Fusinato,  Doctor  of  Law,  former  Minister  of  Public 
Instruction,  former  professor  of  international  law  at  the  University 
of  Turin,  Deputy,  Councilor  of  State; 

Mr.  Knut  Hjalmar  Leonard  Hammarskjold,  Doctor  of  Law,  former 
Minister  of  Justice,  former  Minister  of  Public  Worship  and  Instruc- 
tion, former  Envoy  Extraordinary  and  Minister  Plenipotentiary  at 
Copenhagen,  former  President  of  the  Court  of  Appeals  of  Jonkoping, 
former  professor  in  the  Faculty  of  Law  of  Upsala,  Governor  of  the 
province  of  Upsala; 

Mr.  Kriege,  Doctor  of  Law,  Confidential  Counselor  of  Legation, 
Director  of  the  Department  of  Foreign  Affairs ; 

Mr.  Louis  Renault,  Minister  Plenipotentiary,  professor  in  the 
Faculty  of  Law  of  Paris,  Counselor  to  the  Minister  of  Foreign  Affairs ; 

Baron  Taube,  permanent  member  of  the  Council  of  the  Minister  of 
Foreign  Affairs,  professor  of  international  law  in  the  Imperial  Uni- 
versity of  St.  Petersburg,  Councilor  of  State ; 

Mr.  Hammarskjold  shall  perform  the  duties  of  umpire  or  president 
of  the  tribunal. 

The  two  Governments  agree  to  fix  at  3,000  Netherland  florins  the 
sum  to  be  deposited  by  each  of  them,  conformably  to  Article  4 of  each 
compromis,  it  being  understood  that  the  said  sum  is  to  serve  as  pro- 
vision for  all  business  with  which  the  above-mentioned  arbitral  tri- 
bunal is  charged. 

The  two  Governments  reser\'C  the  right  to  modify  by  mutual  agree- 
ment Article  5 of  each  of  the  compromis  with  respect  to  the  date  of 
the  meeting  of  the  arbitral  tribunal. 

Done  at  Paris,  April  4,  1912. 

(L.  S.)  Signed:  R.  Poincare 

(L.  S.)  Signed:  M.  Ruspoli 

'Translation.  For  the  original  French  text,  see  Appendix,  p.  563. 

^Antc,  p.  336;  t>ost,  p.  351. 


THE  MANOUBA  CASE 

between 

FRANCE  and  ITALY 
Decided  May  6,  1913 

Syllabus 

On  January  5,  1912,  during  the  war  between  Turkey  and  Italy  over 
Tripoli  and  Cyrenaica,  the  Ottoman  Government  requested  the  French 
Government  to  provide  facilities  for  a Turkish  Red  Crescent  Mission 
to  reach  the  seat  of  the  war  via  Tunis,  which  the  French  Government 
agreed  to  do.  The  Italian  Ambassador  in  Paris  protested  against  the 
proposed  action,  but  the  French  Government  assured  him  that  the 
Turks  in  question  were  members  of  the  Red  Crescent  Mission  and  also 
sent  instructions  that  the  Tunis  authorities  should  confirm  this  fact 
before  allowing  the  Turks  to  proceed.  This  information  and  proceed- 
ing satisfied  the  Ambassador  and  he  communicated  with  his  Govern- 
ment. Before  his  message  arrived,  however,  the  Manouba,  a French 
vessel,  upon  which  the  Turks  were  being  transported,  was  captured  on 
January  18,  1912,  by  an  Italian  war  vessel,  and  taken  to  Cagliari,  at 
which  port  it  arrived  on  the  same  day.  The  Italians,  claiming  that  the 
Turks  were  carrying  arms  and  money  for  the  use  of  the  Ottoman 
forces  in  Tripoli,  demanded  their  surrender,  and,  on  the  refusal  of 
the  captain  of  the  Manouba  to  comply,  seized  the  vessel.  The  French 
Embassy  was  advised  of  what  had  occurred,  and,  in  view  of  assur- 
ances of  the  Italians  that  the  Turks  were  belligerents,  directed  the 
vice-consul  at  Cagliari  to  order  their  removal  from  the  Manouba. 
This  was  done  in  the  afternoon  of  January  19,  1912,  and  the  vessel 
proceeded  on  her  voyage.  Notwithstanding  the  action  of  the  French 
Embassy,  vigorous  representations  were  immediately  made  to  the 
Italian  Government  by  the  French  Government,  which  demanded  the 
release  of  the  Turks,  reparation  for  the  offense  to  the  French  flag, 
the  violation  of  the  conventional  engagements  between  the  two  coun- 
tries, particularly  Article  2 of  the  Hague  Convention  of  1907  relative 
to  certain  restrictions  on  the  right  of  capture  in  maritime  warfare, 
and  Article  9 of  the  Geneva  Convention  of  July  6,  1906,  for  the 
amelioration  of  the  condition  of  the  sick  and  wounded  in  the  field,  and 
the  verbal  agreement  between  the  two  Governments  relative  to  the 
passengers  on  the  Manouba.  Indemnities  to  the  private  individuals 
interested  in  the  steamer  and  its  voyage  were  also  demanded.  The 
Italian  Government  agreed  to  deliver  the  Turkish  subjects  to  the 
French  consul  at  Cagliari  to  be  returned  upon  the  responsibility  of 
France  to  the  place  from  which  they  sailed.  It  took  issue,  however, 


342 


IHE  HAGUE  COURT  REPORTS 


with  the  other  French  demands,  and  made  a counter-claim  for  the 
violation  of  its  belligerent  right  under  international  law  to  ascertain 
the  character  of  individuals  suspected  of  being  soldiers  of  the  enemy 
found  on  board  neutral  commercial  vessels,  and  for  reimbursement  of 
expenses  incurred  on  account  of  the  seizure  of  the  vessel. 

The  controversy  was  referred  under  a compromis  dated  March  6, 
1912,^  to  an  arbitral  tribunal  selected  from  the  members  of  the  Per- 
manent Court  of  Arbitration  at  The  Hague.  The  tribunal  was  com- 
posed of  K.  Hj.  L.  Hammarskjold  of  Sweden;  Louis  Renault  of 
France;  Guido  Fusinato  of  Italy;  J.  Kriege  of  Germany,  and  Baron 
Michel  de  Taube  of  Russia.  Its  sessions  began  March  31,  1913,  and 
ended  May  6,  1913.  In  an  award  rendered  on  the  latter  date,  the  tri- 
bunal held  that  there  was  a misunderstanding  between  the  two  Gov- 
ernments as  to  the  exemption  of  the  vessel  which  carried  these  pas- 
sengers from  the  right  of  search,  and  that,  in  the  absence  of  a special 
understanding,  the  Italian  naval  authorities  were  justified  in  acting 
according  to  the  common  international  law ; that  they  had  sufficient 
reasons  to  believe  that  some  of  the  passengers  were  enemy  soldiers 
and  had  a right  to  demand  and  compel  their  surrender,  but  that  they 
had  no  right  to  capture  the  vessel  and  force  it  to  leave  its  course 
unless  for  the  purpose  of  arresting  the  captain  for  failure  to  comply 
with  such  demand ; that  no  such  demand  having  been  made,  the  cap- 
ture and  conveyance  of  the  ship  to  Cagliari  were  illegal.  The  tribunal 
further  held,  however,  that  the  illegality  of  the  capture  did  not  affect 
the  right  of  the  Italian  authorities  at  Cagliari  to  demand  and  compel 
the  surrender  of  the  Turkish  passengers  and  to  arrest  them,  and  upon 
refusal  of  the  demand  by  the  captain  to  detain  the  vessel  until  it  was 
complied  with.  The  detention  of  the  vessel  at  Cagliari  and  the  arrest 
of  the  passengers  were  therefore  held  to  be  legal.  The  national  claims 
of  both  Governments  were  disallowed,  but  a small  indemnity  was 
awarded  to  France  for  the  losses  sustained  by  the  private  individuals 
interested  in  the  vessel  and  its  voyage  by  reason  of  its  illegal  capture 
and  convoy  to  Cagliari,  from  which  indemnity  the  tribunal  deducted 
the  amount  of  expenses  incurred  by  the  Italian  Government  in  guard- 
ing the  vessel  during  its  sequestration  at  Cagliari  to  compel  the  sur- 
render of  the  passengers. 


AWARD  OF  THE  TRIBUNAL 

Award  of  the  arbitral  tribunal  in  the  case  of  the  French  mail  steamer 
“Manouba.’’ — The  Hague,  May  6,  1913.“ 

Considering  that  by  an  agreement  dated  January  26,  1912,®  and 


^Post,  p.  351.  , . . , 

^American  Journal  of  International  Law,  vol  7,  p.  629.  For  the  original 
Frencn  text,  see  Appendix,  p.  56S. 

^Ante,  p.  339. 


THE  MANOUBA  case 


343 


by  a compromis  dated  the  6th  of  March  following/  the  Government 
of  the  French  Republic  and  the  Royal  Italian  Government  have 
agreed  to  submit  to  an  arbitral  tribunal  composed  of  five  members 
the  decision  of  the  following  questions : 

1.  Were  the  Italian  naval  authorities,  in  general  and  in  the  special 
circumstances  under  which  the  act  was  committed,  within  their 
rights  in  proceeding,  as  they  did,  to  the  capture  and  the  temporary 
detention  of  the  French  mail  steamer  Manouha,  as  well  as  to  the 
arrest  of  the  twenty-nine  Ottoman  passengers  who  were  on  board  ? 

2.  What  should  be  the  pecuniary  or  other  consequences  follow- 
ing the  decision  of  the  preceding  question? 

Considering  that,  in  accordance  with  this  compromis  the  two 
Governments  have  chosen,  by  common  consent,  the  following  mem- 
bers of  the  Permanent  Court  of  Arbitration  to  constitute  the  arbitral 
tribunal : 

His  Excellency  Guido  Fusinato,  Doctor  of  Law,  Minister  of 
State,  formerly  Minister  of  Public  Instruction,  honorary  professor 
of  international  law  in  the  University  of  Turin,  Deputy,  Councilor 
of  State; 

Mr.  Knut  Hjalmar  Leonard  Hammarskjold,  Doctor  of  Law,  for- 
merly Minister  of  Justice,  formerly  Minister  of  Public  Worship 
and  Instruction,  formerly  Envoy  Extraordinary  and  Minister  Pleni- 
potentiary at  Copenhagen,  formerly  President  of  the  Court  of  Ap- 
peals of  Jonkoping,  formerly  professor  in  the  Eaculty  of  Law  of 
Upsala,  Governor  of  the  Province  of  Upsala; 

Mr.  Kriege,  Doctor  of  Law,  at  present  Confidential  Counsel  of 
Legation  and  Director  in  the  Department  of  Foreign  Affairs,  Pleni- 
potentiary in  the  German  Federal  Council; 

Mr.  Louis  Renault,  Minister  Plenipotentiary,  member  of  the  In- 
stitute, professor  in  the  Faculty  of  Law  of  the  University  of  Paris 
and  of  the  Ecole  Libre  des  Sciences  Politiques,  Jurisconsult  of  the 
Ministry  of  Foreign  Affairs; 

His  Excellency  Baron  Michel  de  Taube,  Doctor  of  Law,  Assist- 
ant to  the  Minister  of  Public  Instruction  of  Russia,  Councilor  of 
State ; 

That  the  two  Governments  have,  at  the  same  time,  designated  Mr. 
Hammarskjold  to  perform  the  duties  of  president. 


^Post,  p.  351. 


344 


THE  HAGUE  COURT  REPORTS 


Considering  that,  in  accordance  with  the  compromis  of  March  6, 
1912,  the  cases  and  counter-cases  have  been  duly  exchanged  by 
the  parties  and  communicated  to  the  arbitrators; 

Considering  that  the  tribunal,  constituted  as  specified  above,  met 
at  The  Hague  on  March  31,  1913; 

That  the  two  Governments,  respectively,  have  appointed  as  agents 
and  counsel, 

The  Government  of  the  French  Republic: 

Mr.  Henri  Fromageot,  advocate  in  the  Court  of  Appeal  of 
Paris,  assistant  jurisconsult  in  the  Ministry  of  Foreign  Affairs, 
Counselor  in  international  law  of  the  Navy  Department,  agent; 

Mr.  Andre  Hesse,  advocate  in  the  Court  of  Appeal  of  Paris, 
member  of  the  Chamber  of  Deputies,  counsel; 

The  Royal  Italian  Government : 

Mr.  Arturo  Ricci-Busatti,  Envoy  Extraordinary  and  Minister 
Plenipotentiary,  Chief  of  the  Bureau  of  Disputed  Claims  and  of 
Legislation  of  the  Royal  Ministry  of  Foreign  Affairs,  agent; 

Dr.  Dionisio  Anzilotti,  professor  of  intemational  law  in  the 
University  of  Rome,  counsel. 

Considering  that  the  agents  of  the  jxirties  have  presented  the 
following  demands  to  the  tribunal,  to  wit : 

The  agent  of  the  Government  of  the  French  Republic: 

May  it  please  the  tribunal 

As  to  the  first  question  propounded  by  the  compromis, 

To  say  and  decide  that  the  Italian  naval  authorities  were  not,  in 
general  and  in  the  sp>ecial  circumstances  under  which  the  act  was 
committed,  within  their  rights  in  proceeding,  as  they  did,  to  the 
capture  and  temporary  detention  of  the  French  mail  steamer  Ma- 
nouba,  as  well  as  to  the  arrest  of  the  twenty-nine  Ottoman  pas- 
sengers who  were  on  board. 

As  to  the  second  question  propounded  by  the  compromis, 

To  say  that  the  Royal  Italian  Government  shall  Ije  obliged  to 
pay  to  the  Government  of  the  French  Republic  the  sum  of  one 
franc  damages,  as  moral  reparation  for  the  offense  against  the 
honor  of  the  French  flag; 

To  say  that  the  Royal  Italian  Government  shall  be  obliged  to  pay 
to  the  Government  of  the  French  Republic  the  sum  of  one  hundred 


THE  MANOUBA  CASE 


345 


thousand  francs,  as  penalty  and  reparation  for  the  political  and 
moral  injury  resulting  from  the  violation  by  the  Royal  Italian  Gov- 
ernment of  its  general  and  special  conventional  engagements,  par- 
ticularly the  Convention  of  The  Hague  of  October  18,  1907,  rela- 
tive to  certain  restrictions  on  the  right  of  capture  in  maritime  war- 
fare, Article  2;  the  Geneva  Convention  of  July  6,  1906,  for  the 
amelioration  of  the  condition  of  the  wounded  and  sick  in  armies  in 
the  field.  Article  9 ; and  the  verbal  agreement  between  the  two  Gov- 
ernments of  January  17,  1912,  relative  to  the  control  of  the  passen- 
gers on  board  the  steamer  Manouba; 

To  say  that  the  said  sum  will  be  paid  to  the  Government  of  the 
Republic  for  the  benefit  of  such  work  or  institution  of  international 
interest  as  it  shall  please  the  tribunal  to  designate; 

To  say  that  the  Royal  Italian  Government  shall  be  obliged  to 
pay  to  the  Government  of  the  French  Republic  the  sum  of  one  hun- 
dred and  eight  thousand,  six  hundred  and  one  francs,  seventy  cen- 
times, the  amount  of  the  indemnities  claimed  by  the  private  indi- 
viduals interested  either  in  the  steamer  Manouba  or  in  its  voyage; 

Further,  and  in  case  the  tribunal  does  not  consider  itself  suffi- 
ciently enlightened  upon  this  last  count, 

To  say,  before  coming  to  a decision,  that  one  or  more  of  its 
members,  whom  it  shall  commission  for  that  purpose,  shall  proceed, 
in  the  chamber  where  its  deliberations  take  place,  to  examine  the 
claims  of  the  private  individuals  interested ; 

In  any  case,  and  by  the  application  of  Article  9 of  the  compromis, 
To  say  that,  upon  the  expiration  of  three  months  from  the  date 
of  the  award,  the  sums  which  the  Royal  Italian  Government  is  to 
pay  and  which  shall  not  have  been  paid  shall  bear  interest  at  the 
rate  of  four  per  cent  per  annum. 

And  the  agent  of  the  Royal  Italian  Government : 

May  it  please  the  tribunal 

As  to  the  first  question  propounded  by  the  compromis, 

To  say  and  decide  that  the  Italian  naval  authorities  were  fully 
within  their  rights  in  proceeding,  as  they  did,  to  the  capture  and 
temporary  detention  of  the  French  mail  steamer  Manouba,  as  well 
as  to  the  arrest  of  the  twenty-nine  Ottoman  passengers  who  were 


346 


THE  HAGUE  COURT  REPORTS 


suspected  of  being  soldiers  and  whose  true  character  the  Italian 
Government  had  the  right  to  ascertain. 

Consequently  and  as  to  the  second  question, 

To  say  and  decide  that  no  pecuniary  or  other  consequences  should 
be  imposed  upon  the  Italian  Government  because  of  the  capture  and 
temporary  detention  of  the  French  mail  steamer  Manoiiba; 

To  say  and  decide  that  the  French  Government  was  wrong  in  its 
contention  that  the  Ottoman  passengers  who  fell  legally  into  the 
hands  of  the  Italian  authorities  should  be  surrendered  to  the  French 
Government ; 

To  say  that  the  Government  of  the  French  Republic  shall  be 
obliged  to  pay  to  the  Royal  Government  the  sum  of  one  hundred 
thousand  francs  as  a penalty  and  reparation  for  the  material  and 
moral  injury  resulting  from  the  violation  of  international  law,  es- 
pecially in  so  far  as  the  right  of  the  belligerent  to  ascertain  the 
character  of  individuals  susi)ected  of  being  soldiers  of  the  enemy, 
who  were  found  on  board  neutral  commercial  vessels,  is  concerned ; 

To  say  that  the  said  sum  shall  be  paid  to  the  Royal  Italian  Gov- 
ernment, to  be  devoted  to  such  work  or  such  institution  of  inter- 
national interest  as  it  shall  please  the  tribunal  to  indicate ; 

Further  and  in  case  the  tribunal  should  not  consider  that  this  kind 
of  penalty  should  be  admitted ; 

To  say  that  the  Government  of  the  Republic  shall  be  bound  to 
make  amends  for  the  wrong  done  the  Royal  Italian  Government  in 
such  manner  as  it  shall  please  the  tribunal  to  indicate; 

In  any  event. 

To  say  that  the  Government  of  the  Republic  shall  l)e  obliged  to 
pay  to  the  Royal  Italian  Government  the  sum  of  four  hundred  and 
fourteen  francs,  forty-five  centimes,  the  expenses  incurred  on  ac- 
count of  the  seizure  of  the  Mannuba; 

To  say  that,  upon  the  expiration  of  three  months  from  the  date 
of  the  award,  the  sums  to  be  paid  by  the  Government  of  the  Republic 
and  not  yet  paid  shall  bear  interest  at  the  rate  of  four  j^er  cent 
per  annum. 

Considering  that,  after  the  tribunal  had  heard  the  oral  statements 
of  the  agents  of  the  parties  and  the  explanations  which  they  fur- 
nished at  its  request,  the  arguments  were  duly  declared  closed. 


THE  MANOUBA  CASE 


347 


In  the  Matter  of  Fact 

Considering  that  the  French  mail  steamer  Manouba,  of  the  Com- 
pagnie  de  Navigation  Mixte,  in  the  course  of  a regular  trip  between 
Marseilles  and  Tunis,  was  stopped  off  the  Island  of  San  Pietro  on 
the  18th  of  January,  1912,  about  eight  o’clock  in  the  morning  by 
the  torpedo  boat  destroyer  Agordat  of  the  Royal  Italian  Navy; 

Considering  that,  after  ascertaining  the  presence  of  twenty-nine 
Turkish  passengers  on  board  the  said  steamer,  which  passengers 
were  suspected  of  belonging  to  the  Ottoman  army,  the  Manouba 
was  captured  and  conducted  to  Cagliari; 

Considering  that,  having  arrived  at  this  port  on  the  same  day, 
about  five  o’clock  in  the  evening,  the  captain  of  the  Manouba  was 
summoned  to  deliver  the  above-mentioned  passengers  to  the  Italian 
authorities  and  that,  upon  his  refusal,  these  authorities  proceeded 
to  seize  the  steamer; 

Considering,  finally,  that,  upon  the  request  of  the  vice-consul  of 
France  at  Cagliari,  the  twenty-nine  Turkish  passengers  were  de- 
livered to  the  Italian  authorities  on  January  19  at  half-past  four  in 
the  afternoon,  and  that  the  Manouba  was  then  released  and  resumed 
its  trip  to  Tunis  on  the  same  day  at  7 :20  p.m. 

In  the  Matter  of  Law 

Considering  that,  if  the  French  Government  believed,  given  the 
circumstances  under  which  the  presence  of  Ottoman  passengers  on 
board  the  Manouba  was  made  known  to  it,  that,  taking  into  consid- 
eration the  promise  that  the  character  of  said  passengers  would  be 
verified,  the  Manouba  was  exempted  from  the  right  of  search  or 
coercion  on  the  part  of  the  Italian  naval  authorities,  it  is  established 
that  the  Italian  Government  did  not  in  good  faith  understand  the 
matter  in  the  same  way; 

That,  consequently,  in  the  absence  of  a special  agreement  between 
the  two  Governments,  the  Italian  naval  authorities  were  justified 
in  acting  according  to  the  common  law ; 

Considering  that,  according  to  the  tenor  of  the  compromis,  the 
proceeding  of  the  Italian  Government  includes  three  successive 
phases,  to  wit : the  capture,  the  temporary  detention  of  the  Manouba, 


348 


THE  HAGUE  COURT  REPORTS 


and  the  arrest  of  the  twenty-nine  Turkish  passengers  who  were  on 
board; 

That  it  is  proper  to  examine  in  the  first  place  the  legality  of  each 
of  these  three  phases,  considered  as  isolated  acts  and  independent 
of  the  above-mentioned  proceeding  as  a whole, 

In  this  order  of  things. 

Considering  that  the  Italian  naval  authorities  had,  at  the  time  of 
the  capture  of  the  Manouba,  sufficient  reason  to  believe  that  the  Ot- 
toman passengers  who  were  on  board  were,  some  of  them  at  least, 
military  persons  enrolled  in  the  enemy’s  army; 

That,  consequently,  these  authorities  had  the  right  to  compel  the 
surrender  of  these  passengers  to  them; 

Considering  that  they  had  a right  to  summon  the  captain  to  de- 
liver them,  as  well  as  to  take  the  measures  necessary  to  compel  him 
to  do  so,  or  to  take  possession  of  these  passengers  in  case  of  his 
refusal; 

Considering,  on  the  other  hand,  that,  even  admitting  that  there 
might  have  been  grounds  for  believing  that  the  Ottoman  passengers 
formed  a military  troop  or  detachment,  there  was  no  reason  for 
calling  in  question  the  good  faith  of  the  owner  and  of  the  captain 
of  the  Manouba; 

Considering  that,  under  these  circumstances,  the  Italian  naval  au- 
thorities were  not  within  their  rights  in  capturing  the  Manouba  and 
in  compelling  it  to  leave  its  course  and  follow  the  Agordat  to  Cag- 
liari, unless  it  were  for  the  purpose  of  arrest  after  the  captain  had 
refused  to  obey  a summons  to  surrender  the  Ottoman  passengers ; 

That  no  summons  of  that  kind  having  been  made  before  the 
capture,  the  act  of  capturing  the  Manouba  and  taking  it  to  Cagliari, 
was  not  legal ; 

Considering  that,  as  the  summons  made  at  Cagliari  was  without 
immediate  effect,  the  Italian  naval  authorities  had  the  right  to  take 
the  necessary  measures  of  compulsion,  and  specifically,  to  detain 
the  Manouba  until  the  Ottoman  passengers  were  delivered  to  them ; 

That  the  detention  effected  was  legal  only  to  the  extent  of  a tem- 
porary and  conditional  sequestration; 

Considering,  finally,  that  the  Italian  naval  authorities  had  the 
right  to  compel  the  surrender  of  the  Ottoman  passengers  and  to 
arrest  them. 


THE  MANOUBA  CASE 


349 


In  so  far  as  the  proceeding  as  a whole  is  concerned, 

Considering  that  the  three  phases,  of  which  the  single  proceed- 
ing provided  for  by  the  compromis  is  composed,  should  be  judged 
by  themselves,  and  the  illegality  of  any  one  of  them  should  not,  in 
this  case,  have  any  bearing  on  the  regularity  of  the  others ; 

That  the  illegality  in  capturing  and  taking  the  Manouba  to  Cag- 
liari did  not  vitiate  the  successive  phases  of  the  act; 

Considering,  moreover,  that  the  capture  could  not  be  legalized 
by  the  regularity,  relative  or  absolute,  of  these  last  phases  con- 
sidered separately. 

Upon  the  request  that  the  Royal  Italian  Government  be  con- 
demned to  pay  as  damages : 

1.  The  sum  of  one  franc  for  the  offense  against  the  French  flag; 

2.  The  sum  of  one  hundred  thousand  francs  as  reparation  for  the 
moral  and  political  injury  resulting  from  the  failure  to  observe 
international  common  law  and  the  conventions  which  are  mutually 
binding  upon  both  Italy  and  France, 

And  upon  the  request  that  the  Government  of  the  French  Repub- 
lic be  condemned  to  pay  the  sum  of  one  hundred  thousand  francs  as 
a penalty  and  reparation  for  the  material  and  moral  injury  resulting 
from  the  violation  of  international  law,  specifically  in  so  far  as 
concerns  the  right  of  the  belligerent  to  verify  the  character  of  indi- 
viduals suspected  of  being  soldiers  of  the  enemy,  who  are  found 
on  board  neutral  vessels  of  commerce, 

Considering  that,  in  case  a Power  has  failed  to  fulfil  its  obliga- 
tions, whether  general  or  special,  to  another  Power,  the  establish- 
ment of  this  fact,  especially  in  an  arbitral  award,  constitutes  in 
itself  a severe  penalty; 

That  this  penalty  is  increased,  if  there  be  occasion,  by  the  pay- 
ment of  damages  for  material  losses; 

That,  as  a general  proposition  and  leaving  out  of  consideration 
special  circumstances,  these  penalties  appear  to  be  sufficient ; 

That,  also  as  a general  rule,  the  imposition  of  a further  pecuniary 
penalty  appears  to  be  superfluous  and  to  go  beyond  the  objects  of 
international  jurisdiction ; 

Considering  that,  by  the  application  of  what  has  been  stated,  the 
circumstances  of  the  present  case  do  not  justify  such  supplementary 


350 


THE  HAGUE  COURT  REPORTS 


penalty;  that,  without  further  examination,  there  is  no  reason  for 
complying  with  the  above-mentioned  requests. 

Upon  the  request  of  the  French  agent  that  the  Royal  Italian  Gov- 
ernment be  compelled  to  pay  to  the  Government  of  the  French  Re- 
public the  sum  of  one  hundred  and  eight  thousand,  six  hundred  and 
one  francs,  seventy  centimes,  the  amount  of  the  indemnities  claimed 
by  private  individuals  interested  either  in  the  steamer  Manouha  or 
in  its  voyage; 

Considering  that  an  indemnity  is  due  on  account  of  the  delay 
occasioned  to  the  Manouba  by  its  unwarranted  capture  and  its  con- 
voy to  Cagliari,  but  the  delay  caused  by  the  illegal  refusal  of  the 
captain  to  surrender  the  twenty-nine  Turkish  passengers  at  Cagliari, 
as  well  as  the  fact  that  the  vessel  was  not  taken  entirely  out  of  its 
course  to  Tunis,  should  be  taken  into  account; 

Considering  that,  if  the  Italian  naval  authorities  effected  the  de- 
tention of  the  Manouha  instead  of  the  temporary  and  conditional 
sequestration,  which  was  legal,  it  appears  that  in  this  matter  the 
interested  parties  suffered  no  losses  and  damages ; 

Considering  that,  taking  account  of  these  circumstances  and 
also  of  the  expense  incurred  by  the  Italian  Government  in  guarding 
the  detained  vessel,  the  tribunal,  after  having  heard  the  concurring 
explanations  of  two  of  its  members  charged  by  it  with  the  investi- 
gation of  the  said  claims,  has  decided  upon  four  thousand  francs  as 
the  amount  due  all  those  interested  in  the  vessel  and  its  voyage. 

For  these  reasons  the  arbitral  tribunal  declares  and  pronounces 
as  follows: 

In  so  far  as  the  proceeding  as  a whole,  which  is  covered  by  the 
first  question  propounded  by  the  compromis,  is  concerned. 

The  different  phases  of  this  proceeding  should  not  be  considered 
as  connected  with  each  other  in  the  sense  that  the  character  of  any 
one  of  them,  in  this  case,  should  not  affect  the  character  of  the 
others. 

In  so  far  as  the  various  phases  of  the  said  proceeding  considered 
separately  are  concerned. 

The  Italian  naval  authorities  were  not,  in  general  and  in  the 
special  circumstances  under  which  the  act  was  committed,  within 
their  rights  in  proceeding,  as  they  did,  to  the  capture  of  the  French 
mail  steamer  Manouha  and  its  convoy  to  Cagliari ; 


THE  MANOUBA  CASE 


351 


When  once  the  Manouha  was  captured  and  taken  to  Cagliari,  the 
Italian  naval  authorities  were,  in  general  and  in  the  special  circum- 
stances under  which  the  act  was  committed,  within  their  rights  in 
proceeding,  as  they  did,  to  the  arrest  of  the  twenty-nine  Ottoman 
passengers  who  were  on  board. 

In  so  far  as  concerns  the  second  question  propounded  by  the 
compromis, 

The  Royal  Italian  Government  shall  be  obliged,  within  three 
months  from  the  present  award,  to  pay  to  the  Government  of  the 
French  Republic  the  sum  of  four  thousand  francs,  which,  after  de- 
ducting the  amount  due  the  Italian  Government  for  guarding  the 
Manouba  is  the  amount  of  the  losses  and  damages  sustained,  by 
reason  of  the  capture  of  the  Manouba  and  its  convoy  to  Cagliari,  by 
the  private  individuals  interested  in  the  vessel  and  its  voyage.  There 
is  no  occasion  to  comply  with  the  other  claims  contained  in  the 
demands  of  the  two  parties. 

Done  at  The  Hague,  in  the  building  of  the  Permanent  Court  of 
Arbitration,  May  6,  1913. 

President:  Hj.  L.  Hammarskjold 

Secretary  General:  Michiels  van  Verduynen 
Secretary:  Roell 


AGREEMENT  FOR  ARBITRATION 

Compromis  of  arbitration  relative  to  the  questions  raised  by  the  capture 
and  temporary  detention  of  the  French  mail  steamer  “Manouba." — 
Signed  at  Paris,  March  6,  igi2.^ 

The  Government  of  the  French  Republic  and  the  Royal  Italian  Gov- 
ernment, having  agreed,  on  January  26,  1912,^  in  application  of  the 
Franco-Italian  arbitration  convention  of  December  25,  1903,  which  was 
renewed  December  24,  1908,  to  entrust  an  arbitral  tribunal  with  the 
examination  of  the  capture  and  temporary  detention  of  the  French 
mail  steamer  Manouba  by  the  Italian  naval  authorities,  particularly  in 
the  special  circumstances  under  which  that  act  was  committed,  and  of 
the  arrest  of  the  twenty-nine  Ottoman  passengers  who  were  on  board, 
as  well  as  with  the  duty  of  deciding  the  consequences  which  should 
follow, 

^Translation.  For  the  original  French  text,  see  Appendix,  p.  571. 

*See  ante,  p.  339. 


352 


THE  HAGUE  COURT  REPORTS 


The  undersigned,  duly  authorized  for  that  purpose,  have  agreed 
upon  the  following  compromis: 

Article  1 

An  arbitral  tribunal,  composed  as  hereinafter  stipulated,  is  charged 
with  the  settling  of  the  following  questions: 

1.  Were  the  Italian  naval  authorities,  in  general  and  in  the  special 
circumstances  under  which  the  act  was  committed,  within  their  rights 
in  proceeding,  as  they  did,  to  the  capture  and  temporary  detention  of 
the  French  mail  steamer  Manouba,  as  well  as  to  the  arrest  of  the 
twenty-nine  Ottoman  passengers  who  were  on  board? 

2.  What  should  be  the  pecuniary  or  other  consequences,  following 
the  decision  of  the  preceding  question? 

Article  2 

The  tribunal  shall  be  composed  of  five  arbitrators  which  the  two 
Governments  shall  choose  from  among  the  members  of  the  Permanent 
Court  of  Arbitration  at  The  Hague,  one  of  whom  shall  perform  the 
duties  of  umpire.' 

Article  3 

On  June  15,  1912,  each  party  shall  deposit  with  the  Bureau  of  the 
Permanent  Court  of  Arbitration  fifteen  copies  of  its  memorial,  with 
certified  copies  of  all  documents  and  papers  which  it  intends  to  present 
in  the  case. 

The  Bureau  shall  guarantee  their  transmission  without  delay  to  the 
arbitrators  and  parties,  to  wit:  two  copies  for  each  arbitrator,  three 
copies  for  each  opposing  party;  two  copies  shall  remain  in  the  archives 
of  the  Bureau. 

On  August  15,  1912,  each  party  shall  deposit  in  the  same  manner  as 
above,  its  counter-memorial  with  the  papers  appertaining  thereto,  and 
its  final  conclusions. 

Article  4 

Each  of  the  parties  shall  deposit  with  the  Bureau  of  the  Permanent 
Court  of  Arbitration  at  The  Hague  at  the  same  time  that  it  deposits 
its  memorial,  a sum  for  the  purpose  of  expenses,  which  shall  be  fixed 
by  mutual  agreement. 


^See  the  supplementary  agreement  of  April  4,  1912,  ante,  p.  340. 


THE  MANOUBA  CASE 


353 


Article  5 

The  tribunal  shall  meet  at  The  Hague,  upon  the  convocation  of  its 
president,  in  the  second  fortnight  of  the  month  of  September,  1912. 

Article  6 

Each  party  shall  be  represented  by  an  agent  whose  duty  it  shall  be 
to  serve  as  intermediary  between  it  and  the  tribunal. 

The  tribunal  may  demand  that  either  agent  furnish  it,  if  necessary, 
with  oral  or  written  explanations,  to  which  the  agent  of  the  opposing 
party  shall  have  the  right  to  reply. 

Article  7 

The  French  language  shall  be  used  by  the  tribunal.  Each  party 
may  use  its  own  language. 

Article  8 

The  award  of  the  tribunal  shall  be  rendered  with  the  least  possible 
delay  and  in  any  case  within  thirty  days  following  the  closing  of  the 
debates.  However,  this  period  may  be  extended  upon  the  demand  of 
the  tribunal  and  the  consent  of  the  parties. 

Article  9 

The  tribunal  is  competent  to  regulate  the  conditions  for  the  execu- 
tion of  its  award. 

Article  10 

On  all  points  not  covered  by  the  present  compromis,  the  stipulations 
of  the  Hague  Convention  for  the  pacific  settlement  of  international 
disputes,  of  October  18,  1907,  shall  be  applicable  to  the  present 
arbitration. 

Done,  in  duplicate,  at  Paris,  March  6,  1912. 

(Signed)  L.  Renault 
(Signed)  G.  Fusinato 


THE  ISLAND  OF  TIMOR  CASE 

between 

THE  NETHERLANDS  and  PORTUGAL 
Decided  June  25,  1914 

Syllabus 

This  arbitration  grew  out  of  a dispute  between  the  Netherlands  and 
Portugal  over  the  boundaries  of  their  respective  possessions  in  the 
Island  of  Timor,  which  was  partitioned  between  them  by  a treaty  of 
April  20,  18592  In  order  to  avoid  the  division  of  native  tribes  this 
treaty  had  left  certain  Dutch  territory  within  the  boundaries  assigned 
to  Portugal  and  vice  versa,  but  as  it  later  appeared  desirable  to  abolish 
these  so-called  “enclaves,”  a convention  was  signed  on  June  10,  1893,- 
for  that  purpose  and  for  the  establishing  of  the  boundary  in  the  clear- 
est manner.  A commission  acting  under  this  convention  reached  an 
agreement  upon  most  of  the  boundary  in  1898-1899,  and  the  disputed 
points  were  referred  to  a conference  at  The  Hague,  which  on  July  3, 
1902,  agreed  upon  a solution  which  was  transformed  into  a diploma- 
tic convention  on  October  1,  1904.®  This  convention  settled  the  re- 
mainder of  the  boundary  with  the  exception  of  a part  of  the  Portu- 
guese enclave  formerly  within  Dutch  territory.  As  to  this  a theoretical 
line  was  drawn  and  a mixed  commission  appointed  to  survey  and  mark 
it.  The  commissioners  after  starting  upon  their  work  were  unable  to 
agree  upon  some  of  the  geographical  points  which  had  been  laid  down 
for  their  guidance,  and  their  labors  were  suspended.  After  a lengthy 
diplomatic  correspondence  between  the  foreign  offices  of  the  respective 
Governments  an  agreement  was  signed  at  The  Hague  on  April  3, 
1913,*  referring  the  disputed  boundary  to  the  decision  of  an  arbitrator, 
according  to  the  data  to  be  furnished  by  the  parties  and  on  the  basis 
of  the  general  principles  of  international  law. 

Mr.  Charles  fidouard  Lardy,  the  Swiss  Minister  to  France,  was 
selected  as  arbitrator.  He  rendered  an  award  on  June  25,  1914,  fixing 
the  boundary  in  accordance  with  the  contentions  of  the  Netherlands. 

^Post,  p.  390.  -Post,  p.  393.  ^Post,  p.  396.  *Post,  p.  387. 


THE  ISLAND  OF  TIMOR  CASE 


355 


AWARD  OF  THE  TRIBUNAL 

Arbitral  award  rendered  in  execution  of  the  compromis  signed  at 
The  Hague,  April  j,  1913,  between  the  Netherlands  and  Portugal 
concerning  the  boundary  of  a part  of  their  possessions  in  the 
Island  of  Timor. — Paris,  June  25,  1914.^ 

A dispute  having  arisen  between  the  Royal  Government  of  the 
Netherlands  and  that  of  the  Portuguese  Republic  concerning  the 
subject  of  the  boundary  of  a part  of  their  respective  possessions  in 
the  Island  of  Timor,  the  two  Governments,  by  a convention  signed 
at  The  Hague,  April  3,  1913,^  of  which  ratifications  were  exchanged 
in  the  same  city  on  July  31st  following,  decided  as  a last  resort  to 
refer  its  solution  to  an  arbitrator,  and  accordingly  by  common  ac- 
cord designated  the  undersigned. 

To  understand  the  sense  and  scope  of  the  compromis  of  April  3, 
1913,  there  is  need  succinctly  to  explain  the  negotiations  that  pre- 
ceded that  compromis. 

I.  Historical 

The  Island  of  Timor,  the  farthest  east  of  the  continuous  series 
of  the  Sonde  Islands  and  the  nearest  to  Australia,  was  discovered 
by  the  Portuguese  in  the  sixteenth  century;  the  island  measures 
about  500  kilometers  in  length  from  west  to  east  by  a maximum 
width  of  100  kilometers.  A lofty  chain  of  mountains,  certain  sum- 
mits of  which  reach  an  altitude  of  nearly  3,000  meters,  divides  this 
island  lengthwise  into  two  slopes.  The  eastern  part  of  the  island, 
with  an  approximate  area  of  19,000  square  kilometers,  and  a popu- 
lation of  about  300,000  inhabitants,  is  Portuguese.  The  western 
part,  with  a population  estimated  in  1907  of  131,000  inhabitants 
and  an  area  of  about  20,000  square  kilometers,  is  under  the  sov- 
ereignty of  the  Netherlands,  with  the  exception  of  the  “Kingdom 
of  Okussi  and  Ambeno,”  situate  on  the  northwest  coast  and  sur- 
rounded on  all  sides  by  Dutch  territory  except  on  the  shore. 

The  name  of  “kings”  given  by  the  Portuguese  to  the  chieftains 
of  tribes  is  explained  by  the  fact  that  in  the  native  tongue  they  are 
called  leorey;  the  final  syllable  of  this  word  has  been  translated  into 

^American  Journal  of  International  Law,  vol  9,  p.  240.  For  the  original 
French  text,  see  Appendix,  p.  574. 

^Post,  p.  387. 


356 


THE  HAGUE  COURT  REPORTS 


Portuguese  by  the  word  Rey.  The  Dutch  give  these  chieftains  the 
more  modest  title  of  radjahs. 

This  territorial  partition  between  the  Netherlands  and  Portugal 
rests  on  the  following  agreements : 

April  20,  1859,^  a treaty  signed  at  Lisbon  and  duly  ratified  in  the 
course  of  the  summer  of  1860,  had  defined  the  respective  frontiers 
of  the  middle  of  the  island,  but  had  left  existing  (Article  2)  the 
Dutch  enclave  of  Maucatar  in  the  midst  of  Portuguese  territory, 
and  the  Portuguese  enclave  of  Oikoussi  in  the  midst  of  Dutch  terri- 
tory in  the  west  of  the  island.  It  was  stipulated  (Article  3)  that 
the  enclave  of  Oikoussi  consists  of  the  State  of  Ambenu  wherever 
the  “Portuguese  flag  is  raised,  the  State  of  Oikoussi  proper  and  that 
of  Noimuti.”  See  annex  A,  page  31.^ 

By  another  convention  signed  at  Lisbon  June  10,  1893,*  and  duly 
ratified,  the  two  Governments,  “desiring  to  settle  on  conditions  most 
favorable  to  the  development  of  civilization  and  commerce”  their 
relations  in  the  archipelago  of  Timor,  agreed  “to  establish  the  boun- 
dary of  their  possessions  in  the  clearest  and  most  exact  fashion” 
in  that  island  and  “to  cause  the  enclaves  now  existing  to  disappear” 
(Preamble  and  Article  1).  A commission  of  experts  was  to  be 
designated  to  the  end  of  “formulating  a proposition  capable  of  serv- 
ing as  the  basis  for  the  conclusion  of  a further  convention  fixing 
the  new  boundary  line  in  the  said  island”  (Article  2).  In  case  of 
difficulties  the  two  parties  engaged  “to  submit  to  the  decision  of 
an  . . . arbitrator”  (Article  7).  See  annex  B,  page  34.* 

This  mixed  commission  repaired  to  the  premises  and  agreed  in 
1898-1899  on  most  of  the  boundary.  Notwithstanding,  a consider- 
able number  of  divergencies  persisted  as  to  the  principal  frontier 
in  the  middle  of  the  Island  of  Timor  as  well  as  to  the  frontier  of 
the  Kingdom  of  Okussi-Ambenu  in  the  western  part  of  the  island. 
The  map  annexed*  under  No.  II  indicates  the  respective  claims. 
A conference  was  assembled  at  The  Hague  from  June  23  to  July 
3,  1902,  to  attempt  their  solution.  It  decreed  July  3,  1902,  a plan 

^Posl,  p.  390.  ^Post,  p.  393. 

*For  annexed  maps,  see  opposite  p.  386. 


THE  ISLAND  OF  TIMOR  CASE 


357 


which  was  transformed  into  a diplomatic  convention  signed  at  The 
Hague,  October  1,  1904,  and  duly  ratified.  See  annex  C,  page  37.^ 

A summary  of  the  results  of  the  Convention  of  1904  is  shown 
on  the  transparent  map  annexed  under  No.  I;  the  superposition  of 
the  transparent  map  No.  I on  the  map  No.  II  shows  what  Portugal 
obtained,  in  the  center  of  the  Island  of  Timor,  the  Dutch  enclave  of 
Maukatar,  and  what  the  Netherlands  obtained  in  the  same  region, 
Tahakay,  and  Tamira  Ailala.  On  the  other  hand,  in  the  northwest 
of  the  Island  of  Timor  and  to  the  south  of  the  territory  designated 
by  the  treaty  of  1859,  under  the  name  of  Oikussi  enclave,  the  Neth- 
erlands obtained  Noimuti.  Finally,  the  controverted  eastern  limit 
of  the  territory  of  Oikussi-Ambeno  is  fixed  theoretically  according 
to  a line  A-C,  which  was  to  be  surveyed  and  indicated  on  the 
grounds  within  the  shortest  possible  delay”  (Acts  of  the  conference 
of  1902,  sessions  of  June  27,  pages  10  and  11,  and  of  June  28,  page 
12;  convention  of  October  1,  1904,  Article  4).  The  line  A-C  allowed 
by  the  conference  was  fixed  in  Article  3,  No.  10  of  the  conven- 
tion of  1904  in  the  following  terms:  “From  this  point”  (the  conflu- 
ence of  the  Noel  Bilomi  with  the  Oe-Sunan)  “the  boundary  follows 
the  thalweg  of  the  Oe-Sunan,  runs  as  much  as  possible  across  Nipani 
and  Kelali  (Keli),  strikes  the  source  of  the  Noel  Meto,  and  follows 
the  thalweg  of  that  river  to  its  mouth.” 

All  seemed  ended,  when  the  boundary  commissioners,  having  ar- 
rived at  the  premises  in  June  1909,  for  the  work  of  setting  the 
metes  of  the  eastern  frontier  of  Oikussi-Ambeno  could  not  agree 
and  decided  to  refer  the  matter  to  their  Governments.  The  two 
Governments  were  none  the  more  able  to  agree  and  decided  to  have 
recourse  to  arbitration.  What  was  this  difficulty  that  the  boundary 
commissioners  encountered  ? 

II.  The  Difficulty  Which  Instigated  the  Arbitration 

In  proceeding  to  the  work  of  bounding  the  eastern  frontier  of 
Oikussi-Ambeno  the  commissioners  had  commenced  in  the  north,  on 
the  coast,  and  ascended  in  a southerly  direction  the  course  of  the 
Noel  Meto  river,  which  was  to  serve  as  a frontier  from  its  mouth 


^Post,  p.  396. 


358 


THE  HAGUE  COURT  RETORTS 


to  its  source.  These  operations  took  place  between  the  1st  and  the 
10th  of  June,  1909,  and  a mete  was  placed  at  the  source  of  the  Noel 
Meto.  The  source  being  obstructed  by  some  steep  cliffs  impossible 
to  cross,  the  commissioners  decided  on  a general  reconnaissance  be- 
tween the  northern  and  southern  parts  of  the  country  still  to  be 
bounded,  that  is  to  say,  between  the  source  of  the  Noel  Meto,  in 
the  north,  and  of  the  Noel  Bilomi,  in  the  south. 

A disagreement  first  arose  in  the  north:  The  map  (see  annex 
III)  signed  in  1904,  at  the  same  time  as  the  convention,  bore  the 
name  Kelali  accompanied  between  parentheses  by  the  word  Keli. 
The  Dutch  delegates  maintained  the  word  Keli  meant  on  the  summit 
of  Mount  Kelali,  a particular  point,  situated  to  the  west  of  the  Noel 
Meto  between  two  “peaked”  rocks,  and  which  had  been  indicated 
by  the  natives  of  Tumbaba  (Dutch)  as  the  boundary  between  them 
and  the  natives  (Portuguese)  of  Ambeno;  according  to  the  Dutch 
commissioners  this  point  is  a “magnificent”  natural  boundary  which 
nearly  follows  the  limit  described  on  the  map  of  1904.  The  Portu- 
guese commissioners,  on  the  contrary,  propose  “to  follow ....  some 
thalwegs  in  the  country  to  the  east  of  the  line  proposed  by  the  Dutch 
delegates,  starting  from  the  same  mete”  placed  at  the  source  of 
the  Noel  Meto.  The  commission  decided  to  survey  the  two  lines 
and  to  leave  the  solution  to  superior  authorities. 

In  the  southern  part,  on  the  Bilomi  river,  the  commissioners  state, 
in  their  session  of  June  17,  1909,  that  they  followed  west  to  east 
the  course  of  the  Nono  Nisi  (or  Nise),  then  the  course  of  the 
Noel  Bilomi,  and  that  they  now  ‘'reached  the  spot  (where  the  com- 
mission of  1899  had  terminated  its  work)  where  the  sun>ey  must 
be  continuued  to  the  north”  That  point  had  been  designated  in  the 
convention  of  1904,  Article  3,  Nos.  9 and  10,  and  on  the  map  an- 
nexed, as  the  confluence  of  the  Noel  Bilomi  and  the  Oe  Sunan.  “The 
four  delegates  state  that  at  that  place  there  are  two  aMuents  coming 
from  the  north,  hut  neither  is  called  the  Oi  Sunan.” 

The  Dutch  delegates  then  explain  that  the  country  situated  be- 
tween the  two  affluents  is  called  Sunan,  that  moreover,  they  do  not 
recognize  any  affluent  of  the  Noel  Bilomi  bearing  the  name  of 
Oe  Sunan  and  that  none  exists ; thus  they  insist  the  frontier  line  be 


THE  ISLAND  OF  TIMOR  CASE 


359 


surveyed  toward  the  north,  starting  from  the  point  designated  on 
the  maps  of  1899  and  1904. 

The  Portuguese  delegates  observe  that  a river  called  Oe  Sunan 
or  Oil  Sunan,  which  is  not,  it  is  true,  an  affluent  of  the  Bilomi, 
exists  farther  to  the  east  and  has  its  source  “hard  by  the  Bilomi.” 

The  commissioners  unanimously  decided  to  survey  the  two  lines, 
“starting  from  a point”  indicated  on  the  maps  of  1899  and  1904, 
and  “where  the  commission  of  i8gp  terminated  its  work”  that  is, 
the  line  proposed  by  the  Dutch  delegates  in  a northerly  direction 
and  the  line  desired  by  the  Portuguese  in  an  easterly  direction  (ses- 
sion of  June  17,  1909,  First  Portuguese  Case,  page  27). 

At  the  session  of  June  21,  1909,  and  during  the  course  of  the 
survey  of  the  frontier  line  proposed  by  the  Portuguese  delegates 
in  the  easterly  direction  ascending  the  Noel  Bilomi  river,  “the  four 
delegates  state  uanimously  that  they  have  not  met  an  affluent  (of  the 
Noel  Bilomi)  called  the  Oe-Sunan.”  The  Dutch  delegates  observe 
that  the  Bilomi  has  changed  its  name,  in  this  region,  to  which  their 
Portuguese  colleagues  answer  “that  the  Bilomi  river  still  exists, 
but  that,  following  the  native  customs,  it  bears  the  name  of  the 
country  it  crosses.”  Finally  and  above  all,  the  Portuguese  delegates 
observe  that  a short  distance  from  the  Bilomi,  on  the  north  bank, 
is  one  Mount  Kinapua,  on  the  opposite  slope  of  which  is  a river 
bearing  the  name  of  Oe  Sunan,  and  which  flows  north.  It  would 
suffice  to  follow  the  course  of  that  river,  then  to  ascend  the  Noi 
Fulan  river  and  finally  to  connect  the  source  of  the  latter  with  the 
source  of  the  Noel  Meto  already  recognized  by  the  mixed  commis- 
sion. 

The  Dutch  delegates  declare  it  useless  to  proceed  to  a reconnais- 
sance on  this  river,  for  Mount  Kinapua  and  the  boundary  that  would 
result  from  the  Portuguese  proposition  would  be  outside  the  terri- 
tory which  was  disputed  in  1899;  Mount  Tasona  figures  on  the  map 
of  1899  on  the  extreme  eastern  limit  of  the  Portuguese  claims  of 
that  time,  claims  which  the  treaty  of  1904  threw  aside;  thus  there 
could  be  no  question  of  a boundary  going  still  farther  east. 

The  labors  of  the  mixed  commission  were  suspended  and  the 
question,  brought  within  the  domain  of  diplomacy,  gave  place  to  a 
long  exchange  of  correspondence  between  the  cabinets  of  The 
Hague  and  Lisbon. 


360 


THE  HAGUE  COURT  REPORTS 


This  correspondence  ended  in  the  agreement  of  1913/  entrusting 
the  arbitrator  with  the  commission  of  deciding,  according  to  “the 
data  furnished  by  the  parties”  and  “on  the  basis  of  the  general  prin- 
ciples of  international  law,  how  ought  to  be  fixed  conformably 
with  Article  3,  No.  10  of  the  convention  concluded  at  The  Hague, 
October  1,  1904,  . . . .the  boundary  starting  from  the  Noel  Bilomi 
to  the  source  of  the  Noel  Meto.”  See  annex  D,  page  41.^ 

III.  The  Portuguese  Point  of  View 

The  principal  arguments  invoked  by  the  Government  of  the 
Portuguese  Republic  in  favor  of  the  thesis  supported  by  its  boun- 
dary commissioners  can.be  summarized  as  follows: 

1.  At  the  point  where  the  work  of  the  1899  boundary  was 
stopped,  and  where,  according  to  the  treaty  of  1904  and  according 
to  the  map  annexed  thereto,  the  Noel  Bilomi  should  receive  an 
affluent  with  the  name  of  Oe  Sunan,  it  is  recognized  by  common 
agreement  that  no  affluent  by  that  name  exists. 

2.  There  exists,  on  the  contrary,  farther  to  the  east,  a river 
Oe  Sunan,  which  is  not,  it  is  true,  an  affluent  of  the  Bilomi,  but 
which  takes  its  source  on  the  north  slope  of  Kinapua  Mountain 
very  close  to  the  river  Bilomi ; on  Mount  Kinapua  there  is  a mete 
proclaimed  by  numerous  native  chieftains  as  having  served  as  the 
recognized  boundary  between  the  Portuguese  Ambenos  and  the 
Dutch  Tumbabas.  From  the  same  Mount  Kinapua  a brook  runs 
toward  the  Bilomi,  and  these  two  water-courses  seem  to  continue 
each  other  from  the  summit.  According  to  the  native  chieftains, 
the  course  of  this  river  Oe-Sunan  is  the  historical  and  natural  boun- 
dary between  the  Portuguese  Ambenos  on  one  side,  and  the  Dutch 
Tumbabas  and  Amakonos  on  the  other  side. 

3.  The  same  native  chieftains  include  in  Ambeno  all  that  region 
comprised  between  the  river  Oe  Sunan  on  the  east,  the  river  Ni 
Fullan  on  the  north  and  the  incontestibly  Portuguese  territory  of 
Oikoussi- Ambeno  west  of  Mounts  Kelali  and  Netton.  On  a private 
map  published  at  Batavia  the  name  Ambeno  is  found  inscribed  alto- 
gether in  that  part  wrongly  claimed  to-day  by  the  Netherlands. 


^Posi,  p.  387. 


THE  ISLAND  OF  TIMOR  CASE 


361 


4.  The  treaty  of  1859  rests  on  the  principle  that  native  States 
should  not  be  separated,  parcelled  out;  the  boundary-line  proposed 
by  the  Netherlands  cuts  the  Ambenos’  territory  and  would  deprive 
those  natives  of  their  pasture  and  garden  lands  that  are  located  to 
the  east  of  the  frontier  and  in  Dutch  territory. 

5.  Nothing  proves  that  the  boundary  to  be  effected  ought  neces- 
sarily to  commence  where  the  work  of  bounding  had  been  suspended 
in  1899,  following  hostilities  among  the  natives,  and  marked  on  the 
maps  at  the  confluence  of  the  Bilomi  and  the  Oe  Sunan  brook, 
which  in  reality  does  not  exist  at  that  spot.  There  are  two  affluents 
at  that  spot;  the  Kamboun  and  the  Nono-Offi.  Why  follow  the 
course  of  the  Kamboun  to  the  north  rather  than  that  of  the  Nono- 
Offi,  which  comes  from  the  northeast  and  spills  into  the  Bilomi  at 
that  point? 

By  the  maps  of  1899  and  1904,  in  the  opinion  of  the  Portuguese 
Government,  it  was  desired  to  give  the  boundary  commissioners 
only  “a  drawing  designed  to  fix  ideas,  and  a vague  and  simple  indi- 
cation of  what  ought  to  be  settled  later.” 

The  true  intention  of  the  signatories  of  the  treaty  of  1904  was  to 
follow  the  course  of  the  Oe  'Sunan,  where  it  is  in  reality,  that  is  to 
say,  farther  east.  Thus,  in  the  sense  of  the  treaty,  nothing  hinders 
ascending  the  Bilomi  to  the  point  nearest  the  source  of  the  true 
Oe  Sunan,  a source  so  near  the  course  of  the  Bilomi  that  it  is  almost 
an  affluent. 

6.  The  line  proposed  by  the  Netherlands,  which  according  to  the 
treaty  of  1904  ought  “to  cross  Nipani  and  Kelali  (Keli)  as  much  as 
possible,”  does  not  cross  Nipani  but  touches  only  Fatu  Nipani,  that 
is  to  say,  the  western  extremity  of  Nipani.  Hence  it  does  not  cor- 
respond to  the  program  of  1904. 

7.  The  line  proposed  by  the  Netherlands  does  not  constitute  a 
natural  frontier,  while  that  suggested  by  Portugal  follows  water- 
courses nearly  all  the  way. 

IV.  The  Dutch  Point  of  View 

The  principal  arguments  of  the  Royal  Government  of  the  Nether- 
lands may  be  summarized  as  follows: 

1.  The  treaty  of  1859  did  not  prescribe  in  any  imperative  way 


362 


THE  HAGUE  COURT  REPORTS 


that  native  territories  ought  not  to  be  divided  or  parcelled.  On  the 
contrary,  it  assigned  to  Portugal  “the  State  of  Ambenu  wherever 
the  Portuguese  flag  is  raised  there,”  thus  sanctioning  not  only  the 
division  of  a native  State,  but  precisely  the  division  of  the  very 
State  of  Ambenu,  and  that  in  the  following  terms:  “The  Nether- 
lands cedes  to  . . . Portugal  that  part  of  the  State  of  Ambenu 

or  Ambeno  which  for  several  years  has  flown  the  Portuguese  flag.” 

More  than  this,  the  treaty  of  1859  could  have  been,  and  has  been 
modified  effectively  by  the  subsequent  treaties,  treaties  which  alone 
ought  to  be  taken  into  consideration  to-day  in  those  places  where 
they  have  modified  the  treaty  of  1859. 

2.  No  uncertainty  exists  as  to  the  point  where  the  boundary 
commissioners  of  1899  stopped.  That  point  served  as  a basis  for 
the  negotiations  of  1902,  and  was  marked  on  the  map  (annex  III) 
signed  at  that  time  by  the  negotiators  of  the  two  countries  as  to  be 
adjoined  to  the  draft  of  the  treaty.  That  draft  of  1902  became  the 
treaty  of  1904.  From  this  jxjint  and  no  other  begins  line  A-C,  ad- 
mitted in  1902  as  properly  placing  the  frontier  (map  annex  I) 
That  line  A-C  extends  from  this  point  north  as  far  as  the  source  of 
the  river  Noel  Meto,  and  the  frontier  ought  then  to  follow  that 
water-course  as  far  as  its  embouchure  into  the  sea  in  the  north. 

The  location  of  the  source  of  the  Noel  Meto  was  recognized  con- 
tradictorily in  1909 : a mete  was  placed  there  by  common  agreement. 
The  discussion  concerned  only  the  survey  between  that  source  and 
point  A situate  at  the  spot  where  the  commissioners  stopped  in  1899. 

3.  On  the  official  map  of  1899  (annex  IV),  as  on  the  official 
map  of  1904  (annex  III),  an  affluent,  to  which,  by  an  error  that 
the  Netherlands  does  not  contest,  has  been  given  the  name  of 
Oe  Sunan,  is  represented  as  coming  from  the  north  to  the  point  in 
question.  This  river,  which  in  reality  bears  among  the  Tumbabas 
the  name  of  Kabun,  and  among  the  Ambenos  that  of  Leos,  cor- 
responds wholly  to  the  intention  of  the  contracting  parties,  which 
was  to  follow,  beginning  with  point  A,  an  affluent  coming  from  the 
north  in  the  direction  A-C.  The  error  of  name  has  the  less  sig- 
nificance since  very  frequently  in  that  region  the  water-courses  have 
several  names,  or  change  their  names,  or  bear  the  name  of  the  coun- 
try they  traverse:  the  region  east  of  Kabun,  or  Leos  (the  Oe  Sunan 


THE  ISLAND  OF  TIMOR  CASE 


363 


of  1904)  has,  according  to  the  Portuguese  Government,  the  name 
of  Hue-Son,  of  analogous  sound,  and,  according  to  the  Dutch  com- 
missioners, that  of  Sunan,  ’which  explains  the  error  of  the  commis- 
sioners. 

4.  The  native  chieftains  of  Amakono  (Dutch)  declared  (mixed 
commission,  session  of  February  21,  1899)  that  their  country  com- 
prises all  the  region  “situated  between  the  Oe  Sunan,  Nipani,  Kelali- 
Keli,  and  the  Noel  Meto  (on  the  west),  the  sea  of  Timor  (on  the 
north),  the  Noel  Boll  Bass,  the  Humusu  and  Kin  Napua  summits 
(on  the  east),  Tasona,  the  Noel  Boho  and  the  Noel  Bilomi  (on  the 
south).”  Now  the  western  frontier  here  described  and  indicated  in 
1899  as  separating  the  Amakanos  (Dutch)  from  Ambeno  (Portu- 
guese) is  precisely  that  sanctioned  by  the  treaty  of  1904.  The 
Oe  .Sunan  which  figures  there  can  be  only  the  water-course  to  which 
mistakenly  but  by  common  agreement  this  name  was  given  in  the 
official  maps  of  1899  and  1904,  that  is  to  say,  a water-course  situ- 
ated west  of  the  disputed  territory,  and  not  the  pretended  Oe  Sunan 
now  pleaded  by  Portugal,  which  is  situated  on  the  eastern  frontier 
of  the  disputed  territory.  Hence  this  is  the  very  water-course,  no 
matter  what  its  name,  situated  to  the  west  of  the  said  territory, 
which  the  parties  agreed  to  adopt  as  a boundary. 

The  proof  that  Portugal  could  not  have  had  in  view  in  1899  and 
1904  the  eastern  stream  to  which  it  now  gives  the  name  of  Oe 
Sunan,  is  furnished  by  the  fact  that  in  the  session  of  February  21, 
1899,  its  commissioners  proposed  as  a boundary  a line  starting  from 
the  point  where  the  stream  called  Oe  Sunan  spills  into  the  Bilomi 
and  then  ascending  the  Noel  Bilomi  easterly  as  far  as  Nunkalai 
(next  crossing  Tasona  and  from  Kin  Napua  proceeding  northerly 
as  far  as  Humusu  and  to  the  source  of  the  Noel  Boll  Bass,  of  which 
the  course  would  have  served  as  a frontier  as  far  as  its  embouchure 
into  the  sea).  This  Portuguese  proposition  of  1899  would  be  un- 
intelligible if  there  were  a question  of  any  other  stream  than  that 
figuring  on  the  official  maps  of  1899  and  1904  with  the  name  of 
Oe  Sunan ; how  could  there  be  a question  of  another  river  Oe  Sunan 
situated  east  of  Nunkalai  since  Nunkalai  is  really  west  and  not  east 
of  this  new  Oe  Sunan  discovered  by  the  Portuguese  ? 


364 


THE  HAGUE  COURT  REPORTS 


5.  Two  inquiries  recently  instituted  by  the  Dutch  authorities  of 
the  Island  of  Timor  confirmed,  moreover,  that  no  river  by  the  name 
of  Oe  Sunan  rises  on  Mount  Kinapua;  the  stream  that  rises  on  the 
north  slope,  at  a certain  distance  from  the  summit,  has  the  names 
Poeamesse  and  Noilpolan,  and  at  Fatoe  Metassa  (Fatu  Mutassa  of 
the  Portuguese)  spills  into  the  Noel  Manama,  the  Ni-Fullan  of 
the  Portuguese  maps  (second  Dutch  Case,  No.  VII,  page  6). 

6.  Quite  precisely,  the  line  proposed  by  the  Netherlands  does  not 
traverse  the  territory  of  Nipani,  but  the  treaty  of  1904  does  not 
require  that.  It  stipulates  that  the  line  designed  to  unite  the  sources 
of  the  Oe  Sunan  and  the  source  of  the  Noel  Meto  shall  cross 
“Nipani  as  much  as  possible.”  As  the  territory  to  be  bounded  was 
unexplored,  the  words  “as  much  as  possible”  were  justified;  in  fact, 
the  line  suggested  by  the  Netherlands,  if  at  all  it  crosses  the  terri- 
tory of  Nipani,  crosses  the  western  extremity  called  Fatu  Nipani. 
Now,  according  to  the  declarations  recorded  in  the  proces-verbal 
of  the  boundary  of  February  21,  1899,  the  natives,  in  designating 
the  Oe-Sunan,  Nipani,  Kelali,  and  the  Noel  Meto  as  the  eastern 
frontier  of  Okussi-Ambeno  (Portuguese)  and  as  the  western  fron- 
tier of  Amakono  (Dutch)  had  in  view  the  rocky  pile  of  Fatu 
Nipani,  forming  the  western  end  of  Nipani. 

7.  The  frontier  proposed  by  the  Netherlands  is  a natural  frontier 
formed  by  a chain  of  mountains  separating  the  water-courses  all 
the  way. 

It  was  never  prescribed  or  recommended  in  1902-1904  absolutely 
to  follow  water-courses  as  a boundary,  and,  on  the  northern  frontier 
of  Okussi-Ambeno,  bounds  have  been  placed  by  common  agreement 
in  several  places,  notably  when  the  line  passes  from  one  river  basin 
into  another.  (See  especially  Article  3 of  the  convention  of  1904, 
Nos.  2,  3,  and  4.‘) 

A few  metes  will  suffice  to  designate  the  frontier  on  the  ridge  line 
proposed  by  the  Netherlands. 

The  survey  claimed  by  Portugal,  moreover,  would  itself  also 
require  metes  in  the  region  of  Mount  Kinapua,  between  the  Bilomi 
and  the  pretended  new  Oe  Sunan,  and  elsewhere  in  the  region  be- 
tween the  source  of  the  Noel  Meto  and  the  stream  to  which  the 


'^Post,  p.  397. 


THE  ISLAND  OF  TIMOR  CASE 


365 


Portuguese  give  the  name  Ni-Fullan,  that  is  to  say,  at  the  two  ends 
of  the  Portuguese  survey. 

8.  The  line  that  Portugal  proposes  to-day  reproduces  the  sub- 
stance of  its  claims  of  1899  and  1902  in  that  region.  Now,  it  is 
incontestable  that  by  accepting  the  line  A-C  in  the  conference  of 
1902  and  incorporating  it  in  the  treaty  of  1904  Portugal  ceded  the 
territory  to  which  formerly  it  made  pretensions.  Equitably  it 
could  not  claim  that  same  territory  to-day. 

V.  The  Rules  of  Law  Applicable 

According  to  Article  2 of  the  compromis,  the  arbitrator  is  to  base 
his  decision  not  only  on  the  treaties  in  force  between  the  Nether- 
lands and  Portugal  relative  to  the  boundary  of  their  possessions  in 
the  Island  of  Timor,  but  also  on  the  “general  principles  of  inter- 
national law.” 

It  is  almost  superfluous  to  call  these  principles  to  mind. 

Heffter,  Volkerrecht,  section  94,  for  example,  is  of  this  opinion : 
“Every  treaty  binds  to  a complete  and  loyal  execution  not  only  of 
what  literally  has  been  promised  but  that  to  which  a party  has  bound 
itself,  and  also  of  what  is  conformable  to  the  essence  of  any  treaty 
whatsoever  as  to  the  harmonious  intention  of  the  contracting  Par- 
ties (that  is  to  say,  what  is  called  the  spirit  of  treaties).”  Heffter 
adds,  section  95  : “In  case  of  doubt,  treaties  ought  to  be  interpreted 
conformably  with  the  real  mutual  intention,  and  conformably  to 
what  can  be  presumed,  between  parties  acting  loyally  and  with 
reason,  was  promised  by  one  to  the  other  according  to  the  words 
used.” 

Rivier,  Principes  du  droit  des  gens,  II,  No.  157,  expresses  the 
same  thought  in  these  terms : “Above  all  the  common  intention  of 
the  parties  must  be  established : id  quod  actum  est  . . . Good 

faith  prevailing  throughout  this  subject,  treaties  ought  not  to  be 
interpreted  exclusively  according  to  their  letter,  but  according  to 
their  spirit.  . . . Principles  of  treaty  interpretation  are,  by  and 
large,  and  mutatis  mutandis,  those  of  the  interpretation  of  agree- 
ments between  individuals,  principles  of  common  sense  and  experi- 
ence, already  formulated  by  the  Prudents  of  Rome.”  (Ulpien,  L. 
34,  in  Digest  de  R.  J.  50.  17 : “Semper  in  stipulationibus  et  in 

cetius  contractibus  id  sequimur  quod  actum  est.”) 


366 


THE  HAGUE  COURT  REPORTS 


Between  individuals,  the  rules  reverted  to  by  Rivier  were  formu- 
lated in  the  principal  codes  in  terms  sufficiently  precise  to  be  used 
as  commentaries: 

Code  civil  frangais,  neerlandais,  etc.,  Articles  1156-1157.  “In 
conventions  one  should  seek  to  find  what  the  common  intention  of 
the  contracting  parties  was,  rather  than  to  stop  with  the  literal  sense 
of  the  words.  When  a clause  is  susceptible  of  two  meanings  it 
should  be  interpreted  in  that  meaning  which  gives  it  some  effect, 
rather  than  in  that  meaning  which  produces  no  effect.”  German 
Civil  Code  of  1896,  Article  133 : “To  interpret  a declaration  of 
will,  it  is  necessary  to  seek  the  actual  zvill  and  not  to  be  content  with 
the  literal  meaning  of  the  expression”  {Bei  der  Auslegung  einer 
IVillcfiserkldriing  ist  der  uirkliche  Wille  zu  erforschen  und  nicht  an 
dem  biichst'dblichen  Sinne  des  Ausdrucks  ”zu  haften”).  Portuguese 
Civil  Code  of  i86y,  Article  684.  Swiss  Code  des  Obligations  of 
igii,  Article  18:  “To  appreciate  the  character  and  clauses  of  a 
contract,  there  is  occasion  to  look  for  the  actual  common  intention 
of  the  parties,  without  dwelling  on  inexact  names  or  expressions  of 
which  use  might  have  been  made,  either  erroneously,  or  to  disguise 
the  true  nature  of  the  convention.”  It  is  useless  to  dwell  on  the 
entire  coincidence  of  private  and  international  law  in  this  p>oint. 

It  now  remains  only  to  apply  these  rules  to  the  circumstances  of 
the  case  and  to  seek  to  find  what  the  actual  and  mutual  intention 
of  the  Netherlands  and  Portugal  was  at  the  time  of  the  negotiations 
of  1902  that  ended  in  the  convention  of  1904. 

VI.  The  Intention  of  the  Parties  in  Signing  the  Conven- 
tion OF  1904 

1.  The  purpose  of  the  treaty  of  Lisbon  of  June  10,  1893,  had 
been  to  seek  to  establish  a clearer  and  more  exact  boundary  of  the 
respective  possessions  in  the  Island  of  Timor,  and  to  cause  “the 
enclaves  now  existing”  to  disapp>ear  (Article  1).  The  “enclaves” 
figuring  under  this  name  in  the  previous  treaty  signed  at  Lisbon, 
April  20,  1859,  were  those  of  Maucatar  (Article  2,  paragraph  1) 
and  of  Oi  Koussi  (Article  2,  paragraph  2,  and  Article  3,  para- 
graph 1). 

When  in  June,  1902,  the  delegates  of  both  Governments  met  at 


THE  ISLAND  OF  TIMOR  CASE 


367 


The  Hague  to  seek  to  reconcile  the  diverging  propositions  of  the 
boundary  commissioners  sent  to  the  premises  in  1898-1899,  the  dele- 
gates immediately  agreed  to  grant  Portugal  the  Dutch  enclave  of 
Maucatar  at  the  center  of  the  Island  of  Timor,  and  to  the  Nether- 
lands the  Portuguese  enclave  of  Noimuti  to  the  south  of  the  “king- 
dom” of  Ambeno.  In  the  session  of  June  26th  the  Portuguese  de- 
manded, in  the  middle  of  the  island,  all  the  part  of  the  territory  of 
Fialarang,  situate  east  of  the  river  Mota  Bankarna  (see  map  annex 
II)  ; they  maintained  further  that  the  Kingdom  of  Ambeno,  being 
bounded  by  the  sea,  could  not  be  considered  as  an  enclave  any  more 
than  Belgium,  Portugal,  or  the  Netherlands,  and  so  this  unques- 
tionably could  not  be  granted  to  the  Netherlands ; they  also  claimed 
for  Ambeno  all  the  hinterland  of  the  coast  between  the  mouths  of 
the  Noel  Meto  and  the  Noel  Boll  Bass.  This  hinterland  was  to  ex- 
tend southerly  as  far  as  the  river  Bilomi  and  follow  that  river  from 
west  to  east  between  the  point  at  which  the  boundary  commission- 
ers stopped,  in  the  west,  in  1899  and,  in  the  east,  a place  called  Nun- 
kalai  on  the  map  at  that  time  drawn  up  in  common  by  the  boundary 
commissioners  of  the  two  countries.  The  limits  of  the  disputed 
territory  having  been  designated  by  the  four  letters  A,  B,  C,  D on 
a map  (see  annex  II)  presented  by  the  Dutch  delegates  to  the 
conference  of  1902,  the  discussion  turned  to  the  western  line  A-C, 
hallowed  by  the  Netherlands,  and  the  eastern  line  B-D  claimed  by 
Portugal. 

On  the  map  annexed  here  under  No.  IV  the  respective  claims 
have  been  shown,  as  they  result  from  the  map  signed  in  common 
by  all  the  boundary  commissioners  at  Koepang,  February  16,  1899. 

The  Dutch  delegates  declared  at  the  conference  of  June  26,  1902, 
that  the  chieftains  of  the  territory  of  Fialarang,  in  the  middle  of 
the  Island  of  Timor,  refused  absolutely  to  pass  under  the  sov- 
ereignty of  Portugal,  so  that  it  was  not,  or  no  longer  was,  possible 
to  cut  off  that  point  which  Dutch  territory  makes  into  Portuguese 
territory  in  that  region  (see  map  II). 

The  first  Portuguese  delegate  replied  that  it  was  not  necessary 
“to  allow  oneself  to  be  guided  too  much  by  humanitarian  motives 
toward  the  people  of  the  Island  of  Timor;  for  petty  causes  these 


368 


THE  HAGUE  COURT  REPORTS 


tribes  quit  their  native  soil  to  set  up  elsewhere,  and  several  times 
they  have  left  the  Dutch  territory  to  establish  themselves  in  Portu- 
guese territory,  and  znce  versa.”  Finally  the  Portuguese  delegate 
renounced  the  territory  of  Fiamarangs  in  the  middle  of  the  Island 
of  Timor,  but  asked  that  the  western  frontier  of  Oikoussi  be  fixed 
“according  to  the  proposition  of  the  Dutch  commissioners  of  1899.” 
(See  this  proposition  in  the  proces-verhal  of  the  session  held  at 
Koepang,  February  8,  1899,  in  the  first  Portuguese  Case,  p.  24.) 

The  next  day,  June  27th,  the  Dutch  delegate  accepted  the  Portu- 
guese proposition,  but,  to  avoid  all  misunderstanding,  claimed  for 
his  Government  "‘absolute  certitude  that  the  eastern  limit  of  Okussi 
represented  by  the  line  A-C  shall  be  designated  as  much  as  possible 
on  the  land  itself.” 

In  fact,  there  was  a misunderstanding,  for  the  first  Portuguese 
delegate  replied  that  the  proposition  of  the  day  before  “did  not  say 
that  the  frontier  east  of  Okussi  shall  be  formed  by  the  line  A-C, 
but  on  the  contrary  by  the  line  proposed  by  the  mixed  commission 
of  1899  and  indicated  by  the  letters  A-B.” 

The  first  Dutch  delegate  immediately  replied  that  “if  the  line  A-C 
is  not  accepted  as  the  frontier  east  of  Oikoussi  (and  if  the  Dutch 
demands  for  the  frontier  in  the  center  of  Timor  are  not  accepted) 

. the  Dutch  delegates  withdraw  their  consent  to  the  Portu- 
guese proposition.  . . . They  would  never  be  able  to  submit 

to  their  Government  a plan  which  did  not  satisfy  these  conditions.” 
The  Dutch  delegate  ended  by  declaring  that  if  a friendly  agreement 
on  this  basis  could  not  be  reached,  the  Netherlands  would  have  re- 
course to  the  arbitration  foreseen  by  the  convention  of  1893  on  the 
“enclave  question,”  thus  giving  it  to  be  understood  that  in  the  case 
of  the  line  A-C  being  refused  for  the  eastern  frontier  of  Ambeno, 
the  Netherlands  would  raise  the  much  greater  question  of  whether 
the  whole  of  Ambeno  was  not  an  enclave  that  logically  might  re- 
vert to  the  Netherlands,  since  several  times  in  the  treaty  of  1859 
Ambeno  had  been  designated  as  an  enclave,  and  since  one  of  the 
objects  of  the  convention  of  1893  was  the  “suppression  of  en- 
claves.” 

At  the  session  of  June  28th,  the  Portuguese  delegates  “having 
seriously  examined  the  proposition  of  the  Dutch  delegates,  put  for- 


THE  ISLAND  OF  TIMOR  CASE 


369 


ward  in  the  session  of  June  27th,  resolved  to  accept  that  proposi- 
tion, as  well  as  the  terms  advanced  by  them  (by  the  Dutch  dele- 
gates) on  that  subject.” 

It  is  important  to  reproduce  this  discussion  in  detail,  since  it 
throws  positive  light  on  the  real  and  mutual  intention  of  the  par- 
ties. Portugal  declared  herself  satisfied  with  the  conditions  offered 
to  her.  In  the  middle  of  the  Island  of  Timor  she  acquired  the 
large  enclave  of  Maukatar;  if  she  did  not  there  acquire  the  country 
of  the  Fialarangs,  she  kept  Oikussi  Ambeno  in  the  west  of  the 
Island  of  Timor,  and  avoided  discussing  before  arbitrators  the  deli- 
cate question  of  whether  this  enclave  was  or  was  not  an  enclave  sus- 
ceptible of  being  granted  in  its  entirety  to  the  Netherlands ; Portu- 
gal preferred  under  these  circumstances  to  renounce  the  debated 
eastern  part  of  Oikussi  Ambeno  rather  than  to  risk  losing  more  or 
even  all  in  that  locality.  In  a word,  throughout  the  negotiations 
she  found  compensations  deemed  sufficient  by  her  for  abandoning 
the  line  B-D  and  the  intermediate  line  A-B  that  she  claimed.  She 
finally  accepted  the  line  A-C  claimed  by  the  Netherlands  sine  qua 
non. 

Thus  it  is  certain  that  this  line  A-C  should  be  considered,  in  the 
intention  of  the  parties,  as  a concession  made  by  Portugal  to  the 
Netherlands,  cind  that  fact  was  proclaimed  by  the  Portuguese  dele- 
gates themselves,  in  the  case  which  they  presented  at  the  session 
of  June  26,  1902,  during  the  conferences  at  The  Hague,  in  these 
terms : “These  territories  represent  a considerable  reduction  of  the 
frontiers  of  the  kingdom  of  Ocussi-Ambenou.” 

2.  What  is  line  A-C? 

(a)  First,  where  is  point  C?  At  the  embouchure  of  the  Noel 
Meto  river  into  the  Sea  of  Timor  in  the  northern  part  of  the  island. 
No  dispute  exists  on  this  subject,  and  the  convention  of  1904,  Ar- 
ticle 3,  No.  10,  expressly  stipulates  that  the  frontier  follows  the 
thalweg  of  the  Noel  Meto  from  its  source  to  its  mouth.  Between 
1899  and  1902-1904  Portugal  on  the  contrary  claimed  all  that  ter- 
ritory east  of  the  Noel  Meto  as  far  as  the  river  Noel  Boll  Bass; 
the  mouth  of  the  Noel  Boll  Bass  was  point  B,  the  northern  end  of 
the  A-B  line  claimed  by  Portugal  (Portuguese  proposition,  session 
of  February  21,  1899,  second  Dutch  Case  annex  II,  proces-verbaux 


370 


THE  HAGUE  COURT  REPORTS 


of  The  Hague  conferences,  1902,  page  10,  and  maps  here  annexed 
I and  II). 

If  the  location  of  point  C is  not  disputed,  it  is  nevertheless  useful 
to  state  that  the  adoption  in  1904  of  the  course  of  the  Noel  Meto 
rather  than  the  course  of  the  Noel  Boll  Bass,  as  a boundary  line, 
proves  the  general  intention  of  restoring  the  frontier  toward  the 
west. 

(&)  The  location  of  the  source  of  the  Noel  Meto  was  determined 
and  a mete  was  set  there  by  common  agreement  {proces-verbal  of 
June  14,  1909,  first  Portuguese  Case,  page  26).  All  that  p>art  of 
the  survey  is  thus  definitely  settled.  (See  map  annex  VI.) 

(c)  Now,  where  is  the  other  end  of  the  line,  point  A,  acknowl- 
edged in  the  conference  of  1902?  The  Netherlands  maintain  this 
point  A is  found  where  the  reconnaissance  of  1899  ended  and  where 
the  commissioners  had  to  stop  their  work  because  of  hostilities  be- 
tween the  native  tribes,  that  is  to  say  at  the  point  where  the  commis- 
sioners, having  followed  the  Nono  Balena,  the  Nono  Nive  and  the 
Noel  Bilomi,  reached  the  confluence  of  this  last  river  with  another 
coming  from  the  north  and  to  which  by  common  agreement  the 
name  of  Oe  Sunan  was  allotted. 

All  the  boundary  line  in  the  western  and  lower  part  of  the  basin 
of  the  Bilomi  was  sanctioned  and  definitely  admitted  as  frontier 
by  the  treaty  of  1904.  Article  3,  No.  9.  At  the  time  of  the  subse- 
quent reconnaissance  of  June  17,  1909,  it  is  stated  in  the  proces- 
verbal  that  this  point  is  not  doubtful : “It  is  decided  unanimously 
that  the  survey  shall  be  followed  from  this  point,  that  is  to  say,  the 
point  where  the  commission  of  iSpg  stopped  its  work”  (First 
Dutch  Case,  annex  III,  page  4;  first  Portuguese  Case,  page  27.) 
The  disagreement  comes  only  as  to  what  is  to  be  done  from  this 
point  on,  whether  toward  the  north  (Dutch  claim)  or  in  the  easterly 
direction  (Portuguese  claim).  Now  this  point,  at  which  the  work 
was  suspended  in  1899,  starting  from  which  the  disagreement  had 
arisen  in  1899  and  1902,  was  marked  on  the  official  map  signed  in 
a contradictory  manner  by  the  boundary  commissioners  of  the  two 
nations  February  16,  1899.  It  is  this  very  point  which  was  con- 
sidered when  in  the  conference  at  The  Hague  of  1902,  the  dele- 


THE  ISLAND  OF  TIMOR  CASE 


371 


gates  of  the  two  States  solved  the  dispute  by  pronouncing  in  favor 
of  a frontier  extending  toward  the  north  and  designated  by  the 
name  of  line  A-C.  In  drawing  up  this  map  of  February  16,  1899 
(annex  IV  appended  here)  under  the  map  annexed  to  the  conven- 
tion of  1904  (annex  III,  appended  here),  they  state  that  there  is 
absolute  agreement  between  them  as  to  the  location  of  the  point 
in  question. 

The  Portuguese  Government,  moreover,  does  not  contest  very 
sharply  the  location  of  point  A,  for  in  its  first  case  it  expresses  itself 
as  follows,  page  10 : “There  is  no  pretension  to  deny  that  the  line 
starts  from  jxiint  A.  What  is  debated  is  the  subordinate  inflexions 
. . . ,”  and  farther  on  page  15:  “There  is  no  denial  that  the 

frontier  concerned  starts  from  the  pKiint  where  the  surveyors  were 
prevented  from  going  farther;  what  is  denied  is  that  they  had  the 
intention  of  running  it  north  from  there.” 

From  the  above  it  results  that  the  arbitrator  is  certain  that  three 
points  of  the  line  A-C  have  been  duly  established  incontestably,  and 
not  even  contested : point  C in  the  north,  the  source  of  the  Noel 
Meto  in  the  middle,  and  point  A in  the  south,  at  the  spot  where  the 
boundary  work  was  suspended  in  1899.  These  three  points  cer- 
tainly correspond  to  the  intention  of  the  parties  when  they  negoti- 
ated the  project  of  the  convention  of  1902  and  transformed  it  into 
the  convention  of  1904.  To  admit  another  solution  as  to  the  loca- 
tion of  point  A,  moreover,  would  again  place  in  question  the  fron- 
tier of  the  lower  course  of  the  Noel  Bilomi  agreed  upon  by  No.  9 
of  Article  3 of  the  treaty  of  1904;  now.  No.  9 is  not  contested  and 
is  not  in  litigation. 

3.  There  now  remains  to  examine  the  part  of  line  A-C  comprised 
between  point  A in  the  south  and  the  source  of  the  Noel  Meto  in 
the  middle  of  line  A-C. 

Here  again,  and  always,  we  must  look  for  the  real  and  harmoni- 
ous intention  of  the  parties  when  they  bound  themselves: 

In  1902  two  propositions  were  in  sight : That  of  Portugal  had 
been  formulated  as  follows  in  the  proces-verhal  of  the  session  of 
the  boundary  commissioners  held  at  Koepang,  February  21,  1899 
(annex  II  in  the  second  Dutch  Case)  : “From  this  last  point  (point 


372 


THE  HAGUE  COURT  REPORTS 


A),  the  length  of  the  Noel  Bilomi  as  far  as  Nunkalai,  from  there 
crossing  Tasona,  Kin  Napua,  Humusu,  as  far  as  the  source  of  the 
Noel  Boll  Bass;  then  the  length  of  that  river  as  far  as  its  mouth,” 
At  the  conferences  of  The  Hague  of  1902,  this  survey  (D-B)  was 
abandoned  at  the  session  of  June  26th  by  the  Portuguese  delegation 
and  replaced  by  the  demand  for  an  intermediate  and  diagonal  sur- 
vey A-B,  which  would  have  the  course  of  the  Noel  Boll  Bass  as  a 
frontier  in  the  northwest  instead  of  the  Noel  Meto  (see  Map  II 
here  appended).  On  the  28th  of  June  the  Portuguese  delegation 
abandoned  this  retreating  line  {ligne  de  retrait e)  A-B,  moved  back 
westerly  from  the  Noel  Boll  Bass  to  the  Noel  Meto,  and  accepted 
line  A-C  claimed  by  the  Netherlands.  This  line  A-C  was  immedi- 
ately traced  on  a map  which  officially  had  been  annexed  to  the  treaty 
of  1904  (see  map  annexed  III). 

On  this  map  the  frontier,  starting  from  point  A where  the  undis- 
puted frontier  of  the  lower  course  of  the  Noel  Bilomi  ends,  as- 
cends a northerly  direction  the  course  of  a small  affluent  called 
Oe  Sunan  by  common  agreement,  then  continues  northerly  as  far  as 
the  location,  then  not  known,  of  the  source  of  the  Noel  Meto.  This 
survey  on  the  map  was  defined  and  commented  on  as  follows  in  the 
treaty,  Article  3,  No.  10:  “Starting  from  this  point  (A)  the  boun- 
dary follows  the  thalweg  of  the  Oe  Sunan,  crosses  Nipani  and 
Kelali  (Keli)  as  much  as  possible,  strikes  the  source  of  the  Noel 
Meto  and  follows  the  thalweg  of  that  river  as  far  as  its  mouth.” 
Now  this  text,  made  definitive  in  the  treaty  of  1904,  reproduces 
word  for  word  the  text  proposed  by  the  Dutch  commissioners  at  that 
same  session  at  Koepang,  February  21,  1899,  in  opposition  to  what 
the  Portuguese  claimed  at  that  time.  Simply  calling  to  attention 
these  two  maps  and  the  fact  that  in  1902-1904,  the  Portuguese  pro- 
posal was  ignored  totally  and  the  Dutch  proposal  inserted  word  for 
word,  suffices  to  establish  by  evidence  the  intention  of  the  contract- 
ing parties:  when  they  negotiated  and  signed  the  agreement  of  1904 
they  adopted  the  Dutch  survey  and  threw  aside  the  survey  desired 
by  Portugal  on  that  part  of  the  frontier  of  the  two  States  In  the 
Island  of  Timor,  Thus,  in  the  mind  of  the  arbitrator,  the  two  par- 
ties had  a real  and  harmonious  wish  to  adopt  the  most  western  sur- 


THE  ISLAND  OF  TIMOR  CASE 


373 


vev,  not  only  on  the  northern  slope  of  the  island  between  the  Noel 
Boll  Bass  and  the  Noel  Meto,  but  also  in  the  center  of  the  island, 
between  the  source  of  the  Noel  Bilomi  and  the  source  of  the  Noel 
Meto. 

It  is  now  fitting  to  enter  into  the  details  of  examining  the  most 
western  survey; 

4.  Portugal  observes  to-day  that  the  water-course  marked  Oe 
Sunan  on  the  official  maps  of  1899  and  1904,  and  in  Article  3,  No. 
9 of  the  treaty  of  1904,  does  not  exist ; that  really  this  water-course 
bears  the  name  of  Kabun  among  the  members  of  the  Tumbabas 
tribe  or  of  Leos  among  the  members  of  the  tribe  of  Ambenos,  and 
that  the  true  Oe  Sunan  is  to  be  found  six  or  seven  kilometers  farther 
to  the  east.  It  is  true,  the  Portuguese  Government  adds,  that  this 
other  Oe  Sunan  is  not  an  affluent  of  the  Bilomi  river,  that  it  takes 
its  source  at  a certain  distance  from  that  river,  on  the  north  slope 
of  Mount  Kinapua,  but  this  other  Oe  Sunan  and  Mount  Kinapua  are 
claimed  by  the  Ambenos  (Portuguese)  as  from  ancient  date  form- 
ing the  frontier  between  them  on  the  west  and  the  Dutch  Amakonos 
on  the  east : So  it  is  this  other  Oe  Sunan,  in  the  opinion  of  the  Portu- 
guese Government,  that  the  two  Governments  had  in  mind,  when 
in  Article  3,  No.  10  of  the  treaty  of  1904  they  stipulated  that  the 
frontier  would  follow  the  course  of  the  Oe  Sunan. 

To  appreciate  the  scope  of  this  allegation  there  is  reason  to  recol- 
lect that,  on  the  map  prepared  by  the  boundary  commissioners  of 
the  two  nations  at  Koepang,  February  16,  1899  (map  annex  IV) 
the  frontier  then  demanded  by  Portugal  is  indicated  by  a dotted 
line  following  the  presumed  course  of  the  NoH  Bilomi  upstream  in 
an  easterly  direction  starting  from  the  point  (A)  where  the  said 
commissioners  had  to  stop  their  work  at  that  time,  that  is  to  say, 
starting  from  the  confluence  of  the  Noel  Bilomi  with  what  then  by 
common  agreement  was  called  the  Oe  Sunan;  in  the  map  of  1899 
care  was  taken  to  have  the  dotted  line  followed  with  the  words 
“Noel  Bilomi”  so  as  to  indicate  well  the  Portuguese  commissioners 
desire  to  follow  the  course  of  the  river  while  ascending  it. 

On  the  other  hand,  at  the  time  of  the  treaty  of  1904,  all  of  the 
dotted  line  east  of  the  point  where  a halt  was  made  in  1899  was 


374 


THE  HAGUE  COURT  REPORTS 


suppressed,  to  show  clearly  that  there  was  no  longer  reason  to  as- 
cend in  an  easterly  direction  the  then  unexplored  course  of  the  Noel 
Bilomi,  and  that  on  the  contrary  the  frontier  should  proceed  toward 
the  north  (see  transparent  map  annex  III).  This  implies,  in  the 
mind  of  the  arbitrator,  the  harmonious  intention  to  grant,  from 
point  A upstream,  both  hanks  of  the  Noel  Bilomi  to  the  Netherlands. 

Another  fact  which  to  the  arbitrator  seems  to  imply  the  harmoni- 
ous intention  of  the  parties  at  the  time  of  the  signature  of  the  con- 
vention of  1904,  is  that,  in  the  description  of  the  frontier  proposed 
by  the  Portuguese  commissioners  in  1899,  they  suggested  the  follow- 
ing survey  west  to  east:  “From  this  last  point  (the  confluence  of 
the  Noel  Bilomi  with  the  affluent  at  that  time  named  Oe  Sunan)  the 
length  of  the  Noel  Bilomi  as  far  as  Nunkelai,  from  there  crossing 
Tasona,  Kinapua  . . according  to  this  Portuguese  descrip- 

tion Nunkalai  is  to  be  found  east  of  the  river  Oe-Sunan  and  west 
of  Kinapua.  Now,  the  other  Oe-Sunan  river,  now  claimed  by  Por- 
tugal as  a frontier,  is  situate  several  kilometers  east,  and  not  west,  of 
Nunkalai,  from  which  results  the  impossibility  that  this  river  had 
been  considered  by  the  Portuguese  delegates  in  their  proposals  of 
that  time. 

What  further  confirms  this  impression  of  the  arbitrator  is  the 
fact  that  the  new  Oe  Sunan,  this  one  which,  six  kilometers  to  the 
east,  has  its  source  on  the  northern  watershed  of  Mount  Kinapua, 
is  not  an  affluent  of  the  Noel  Bilomi. 

Finally,  this  other  Oe  Sunan  does  not  proceed  “toward  Nipani 
and  Kelali  (Keli)”  as  the  treaty  of  1904  prescriljes  it,  but  is  very 
quickly  confused  with  other  rivers  flowing  east  and  finally  ends  in 
regions  incontestably  Dutch. 

Together  all  of  these  concordant  circumstances  lead  the  arbitrator 
to  the  conviction  that  there  is  no  need  to  pause  on  the  mistake  of 
name  made  by  the  boundary  commissioners  in  1899  and  by  the 
negotiators  of  the  international  acts  of  1902  and  1904  when  they 
gave  the  name  of  Oe  Sunan  to  Kabun  or  Leos,  and  that,  on  the 
contrary,  there  is  reason  to  admit  that  it  is  this  very  Kabun  or  Leos 
that  the  parties  intended  to  consider  as  properly  to  serve  as  a fron- 
tier from  point  A north.  This  mutual  error  of  the  commissioners 


THE  ISLAND  OF  TIMOR  CASE 


375 


of  both  nations  is  explained,  moreover,  when  one  states  that  most 
of  the  water-courses  of  that  region  bear  several  names  or  bear  the 
name  of  the  country  which  they  cross  and  that  a region  neighboring 
to  Kabim  or  Leos  has  the  name  Sunan  the  sound  of  which  resembles 
that  of  Oe  Sunan. 

To  admit  any  other  solution,  to  accept  a surv'ey  mounting  the 
course  of  the  Noel  Bilomi  as  far  as  Mount  Kinapua,  then  passing 
into  the  basin  of  another  Oe  Sunan  which  is  not  an  affluent  of  the 
Bilomi,  and  which  does  not  proceed  toward  Nipani  and  Kelali, 
would  be  contrary  to  the  whole  spirit  of  the  negotiation  of  1902- 
1904,  and  irreconcilable  with  the  map  annexed  to  the  convention  of 
1904. 

Portugal  could  not,  at  this  late  time,  claim  equitably  between  the 
Noel  Bilomi  and  the  source  of  the  Noel  Meto  and,  in  connection 
with  a setting  of  metes,  almost  exactly  the  territory  which  it  re- 
nounced expressly  in  1902-1904  for  compensations  deemed  suffi- 
cient by  her  or  because  she  wished  to  avoid  an  appeal  on  the  part 
of  the  Netherlands  to  arbitration  or  to  more  extensive  claims  in 
the  Okussi  region  (see  map  annexes  V and  VI). 

In  other  words,  there  develops  from  what  has  gone  before  the 
conviction  that  the  will  of  the  contracting  Parties  ought  to  be  inter- 
preted in  the  sense  that,  starting  from  point  A situate  on  the  Bilomi 
river,  the  frontier  follows  in  a northerly  direction  the  thalweg  of 
the  river  Kabun  or  Leos  as  far  as  the  source  of  this  last  water- 
course wrongly  called  Oe  Sunan  in  1899,  1902  and  1904. 

The  reasoning  elucidated  above  under  No.  4 would  be  superfluous 
if,  as  the  Government  of  the  Netherlands  affirms  (second  Case,  No. 
VIII,  page  6),  the  last  reconnaissances  made  on  the  premises  e.stab- 
lished  that  this  new  Oe  Sunan  does  not  exist  and  that  the  water- 
course to  which  this  name  has  been  given  by  the  Portuguese  is  in 
reality  called  Noel  Polan  or  Poeamesse. 

5.  We  have  now  but  to  seek  the  intention  of  the  parties  for  that 
region  included  between  the  source  of  the  Kabun  or  Leos  river 
(wrongly  called  Oe  Sunan  in  1899-1904)  and  the  source  of  the 
Noel  Meto. 

The  convention  of  1904  is  expressed  as  follows ; “The  thalweg 


376 


THE  HAGUE  COURT  REPORTS 


of  the  Oe  Sunan,  (recognized  above  under  No.  4 as  rightfully 
called  Kabun  or  Leos)  crosses  Nepani  and  Kelali  (Keli)  as  much 
as  possible,  (and) strikes  the  source  of  the  Nod  Meto.  . . 

The  Dutch  boundary  commissioners  and  their  Government  pro- 
pose to  connect  the  sources  of  the  Kabun  and  Noel  Meto  rivers  by 
following  almost  exactly  the  dividing  line  of  the  streams,  that  is 
to  say,  a series  of  peaks  of  which  the  principal  ones,  from  north 
to  south,  have  the  names  of  Netton,  Adjausene,  Niseu,  or  Nisene, 
Wanat  or  Vanate,  Fatu  Nipani  or  Fatoe  Nipani,  Fatu  Kabi  (Fatoe 
Kabi)  and  Kelali  (Keli). 

This  proposal  is  contested  by  the  Portuguese  Government  because 
it  would  be  contrary  to  the  intention  of  the  parties  whose  aim  was, 
at  the  time  of  the  conclusion  of  the  treaties  between  the  two  Gov- 
ernments, not  to  divide  the  native  States;  now,  that  line  detaches 
the  whole  eastern  part  from  Portuguese  Ambeno.  In  its  first  Case, 
and  especially  in  the  annexes  to  the  second,  the  Portuguese  Gov- 
ernment invokes  the  depositions  of  numerous  native  chieftains  to 
prove,  in  substance,  that  the  whole  space  which  would  be  attributed 
to  the  Netherlands  is  a part  of  Ambeno  and  belongs  to  the  Ambenos. 
Besides  this  they  invoke  a private  map  edited  at  Batavia  on  which 
the  Ambenos  are  indicated  as  occupying  the  territory  claimed  by 
the  Netherlands.  The  Portuguese  Government  is  of  the  opinion 
that  Ambenu-Oikussi  was  granted  incontestably  to  Portugal  by  the 
treaty  of  1859,  and  that  the  tribe  of  Ambenos  could  not  be  parti- 
tioned between  two  sovereignties. 

Once  again  must  the  arbitrator  seek  to  reconstitute  the  will  of 
the  parties.  Now  according  to  the  test  of  the  treaty  of  1859  Por- 
tugal obtained  only  the  "part”  of  the  State  of  Ambeno  that  “has 
raised  the  Portuguese  flag;”  that  certain  parts  of  Ambeno  were  con- 
sidered, since  1859,  as  remaining  under  the  sovereignty  of  the 
Netherlands,  would  be  nothing  anomalous.  Further  than  this,  the 
private  map  edited  at  Batavia  could  not  be  weighed  in  value  with 
the  two  official  maps  signed  by  the  commissioners  or  delegates  of  the 
two  States  in  1899  and  1904,  and  on  these  two  official  maps  (an- 
nexes III  and  IV)  the  name  Ambeno  does  not  figure  within  the  dis- 
puted territory;  both  put  that  name  west  and  outside  the  disputed 
territory.  Moreover,  it  results  from  the  document  at  hand  that  since 


THE  ISLAND  OF  TIMOR  CASE 


377 


1899  the  Dutch  commissioners  produced  declarations  of  the  native 
Tumbaba  and  Amakano  chieftains  assuring  that  this  territory  be- 
longed to  them  and  was  not  a part  of  Ambeno  (annex  III  in  the 
second  Dutch  Case,  declaration  made  at  the  session  held  at  Koe- 
pang,  February  21,  1899).  Thus  we  find  ourselves  in  the  presence 
of  contradictory  assertions  of  natives.  The  latter  in  1899  had 
been  fighting  for  more  than  twenty  years  (first  Portuguese  Case, 
page  22)  at  the  time  of  the  arrival  of  the  boundary  commissioners 
in  that  region,  and  the  Portuguese  Government  (in  its  first  Case, 
page  9)  acknowledged  it  as  “certain  that  the  peoples  east  of  Oikussi 
Ambeno  have  disputed  the  contiguous  territories  for  a long  time 
and  that  these  peoples  are  so  intermingled  that  it  is  difficult  to  dis- 
tinguish what  really  does  belong  to  them.”  See  also  in  the  second 
Portuguese  Case,  page  10,  the  deposition  of  the  Ambeno  chief, 
Bene  Necat;  “The  eastern  part  of  Oikussi  and  Ambeno  was  in- 
habited by  the  Tumbaba  people  who  were  driven  out  of  there  three 
generations  ago  ...  by  the  Ambeiios.  . . . Since  then 

that  region  has  been  desert,  although  it  has  been  overrun  by  both 
Tumbabas  and  Ambenos.” 

The  intention  of  the  parties  at  the  time  of  the  negotiation  of  1902 
is  found  documented  in  the  proces-verhal  of  the  session  of  June  26th 
(proces-verbaux,  page  7)  during  the  course  of  which  the  first  Por- 
tuguese delegate  himself  advised  “^not  to  allow  one’s  self  to  be  guided 
too  much  in  this  business  by  humanitarian  motives  toward  the  peo- 
ples of  the  Island  of  Timor;  for  petty  causes  these  tribes  quit  their 
native  soil  to  set  up  elsewhere,  and  several  times  they  have  left 
Dutch  territory  to  establish  themselves  in  Portuguese  territory,  and 
vice  versa.”  The  next  day,  proces-verbaux,  page  11,  the  first  Dutch 
delegate  observed  that  his  Government  was  making  “a  great  con- 
cession” in  not  claiming  the  whole  of  Ambeno,  “considering  that 
according  to  his  opinion  the  convention  of  1893  implied  the  disap- 
pearance of  the  enclave  of  Oikussi” ; he  declared  that  if  the  two 
Governments  were  not  able  to  come  to  an  arrangement  on  the  basis 
of  the  line  A-C  proposed  by  the  Netherlands,  the  latter  would  con- 
sider itself  bound  to  have  recourse  to  arbitration  to  decide  whether 
Ambeno  was  an  enclave  that  ought  to  be  granted  to  it  entirely, 
and  then,  June  28th,  the  Portuguese  delegation  accepted  line  A-C 


378 


THE  HAGUE  COURT  REPORTS 


without  restriction  or  reservation  as  had  been  claimed  by  the  Dutch 
delegation. 

From  all  these  facts  there  results  the  conviction  of  the  arbitrator 
that  in  1902-1904  an  agreement  was  reached  without  taking  into 
account  the  chance  of  detaching  such  or  such  a parcel  claimed  by 
the  Ambenos,  the  Tumbabas,  or  the  Amakonos,  and  expressly  stat- 
ing that  there  would  be  no  preoccupation  with  the  claims,  contra- 
dictory as  they  were,  of  the  natives.  In  other  terms,  from  the 
proces-verbaux  of  1902  there  results  the  conviction  of  the  arbitra- 
tor that  Portugal  accepted  line  A-C  as  it  was  claimed  by  the  Nether- 
lands, precisely  because  Portugal  preferred  to  abandon  claims  of  a 
secondary  order  to  the  east,  in  order  to  save  the  big  piece,  that  is 
to  say,  in  order  to  save  what  the  treaty  of  1859  calls  the  “enclave” 
of  Ambenu-Okussi.  The  Government  of  the  Netherlands,  in  the 
mind  of  the  arbitrator,  also  correctly  maintains  in  its  second  Case, 
page  2,  that  nothing  in  the  treaty  of  1859  prevented  the  division 
of  the  kingdom  of  Ambeno,  and  adds:  “Even  if  the  treaty  of 

1859  did  not  sanction  such  a division,  the  Portuguese  Government 
legitimately  could  not  oppose  such  a division  nozv.  Such  objections 
would  come  too  late,  and  ought  to  have  been  raised  before  the  con- 
clusion of  the  treaty  of  1904.” 

The  arbitrator  observes,  moreover,  on  the  two  official  maps  of 
1899  and  1904  (annexes  III  and  IV)  that  Nip>ani  is  indicated  as 
being  very  close  and  slightly  to  the  east  of  line  A-C,  a short  dis- 
tance from  the  source  of  the  Oe  Sunan  (recognized  at  present  as 
rightfully  called  Kabun  or  Leos) ; if  the  survey  now  claimed  by 
Portugal  were  adopted,  that  survey  would  pass  very  far  to  the  east 
and  north  of  Nipani,  and  consequently  would  “cross”  that  territory 
still  less  than  the  survey  proposed  by  the  Netherlands.  It  is  true 
that  the  Portuguese  Government  locates  Nipani  (see  the  map  an- 
nexed under  No.  VI  of  the  first  Dutch  Case  and  the  word 
Nipani  written  in  blue  on  the  map  here  appended,  annex  IV) 
northwest  of  the  disputed  territory,  but  this  unilateral  Portuguese 
map  could  not  be  weighed  in  opposition  to  the  two  official  maps 
of  1899  and  1904  (annexes  III  and  IV),  signed  by  the  delegates 
of  the  two  States ; besides,  even  on  this  exclusively  Portuguese  map, 
the  frontier  desired  by  Portugal  seems  surveyed  to  the  north  of 
Nipani  and  does  not  appear  to  “cross”  that  territory. 


THE  ISLAND  OF  TIMOR  CASE 


379 


6.  The  Government  of  the  Portuguese  Republic  finally  objects 
to  this  survey  of  a line  almost  due  north  and  south  between  the 
source  of  the  Kabun  or  Leos  river  and  the  source  of  the  Noel  Meto, 
since  it  is  a land  frontier,  necessitating  the  placing  of  metes,  while 
the  eastern  line  suggested  by  Portugal  is  formed  essentially  by  a 
succession  of  streams,  which  is  preferable  in  order  to  avoid  con- 
flicts among  the  natives.  In  the  mind  of  the  arbitrator,  this  ob- 
jection rests  on  no  information  resulting  from  the  negotiations  of 
1899  or  1904.  On  the  southern  frontier  of  Okussi-Ambeno,  the 
frontier  adopted  in  1904  in  not  a few  points  is  independent  of 
water-courses  and  ought  to  have  been  or  would  have  been  marked 
on  land  by  metes.  The  very  survey  suggested  by  Portugal  would 
also  admit  of  being  in  part  on  land  and  necessitating  the  setting  of 
metes,  notably  at  the  southeast  angle  (in  the  environs  of  Mount 
Kinapua,  between  the  course  of  the  Bilomi  river  and  the  river  called 
Oe  Sunan  by  the  Portuguese),  and  at  the  northeast  angle  (between 
the  sources  of  the  river  by  the  Portuguese  called  Ni-Fullan  and  the 
source  of  the  Noel  Meto). 

The  survey  suggested  by  the  Dutch  boundary  commissioners 
would  appear  to  the  arbitrator  to  constitute  a frontier  sufficiently 
natural  easily  to  be  bounded  on  land. 

It  consists  of  a continuous  series  of  rather  high  summits,  from 
north  to  south,  bearing  the  names  of  Netton,  Loamitoe,  Adjausene, 
Niseu,  Wanat,  Fatoe-Nipani,  Kelali  or  Keli,  of  which  the  altitude 
is  indicated  as  from  500  to  1,000  meters.  This  range  serves  as  a 
watershed,  and  the  rivers  east  of  that  line  run  east.  Thus  it  does 
not  seem  that  it  would  be  difficult  technically  to  proceed  to  the 
boundary  along  that  range  of  elevations,  the  general  direction  of 
which  corresponds  entirely  to  the  theoretical  line  A-C  adopted  by 
common  agreement  in  1904. 


VII.  Conclusions 

The  preceding  considerations  of  fact  and  law  lead  the  arbitrator 
to  the  following  conclusions; 

1.  The  treaty  of  1859  had  granted  to  Portugal  in  the  eastern 
part  of  the  Island  of  Timor,  the  Oikussi-Ambenu  enclave,  and 


380 


THE  HAGUE  COURT  REPORTS 


at  that  time  the  Netherlands  ceded  to  Portugal  "that  part  of  Am- 
benu  which,  for  several  years,  has  raised  the  Portuguese  flag.” 

2.  The  purpose  of  the  convention  of  1893  was  ‘‘to  establish  in 
the  clearest  and  most  exact  manner  the  boundary”  of  the  respective 
possessions  in  Timor  and  “to  abolish  the  enclaves  existing”  there 
“at  the  present  time.” 

3.  The  convention  of  1904  rectified  the  frontier  in  the  center  of 
the  island  by  granting  Portugal  the  Dutch  enclave  of  Maukatar  and 
other  disputed  territory,  and  in  the  southwestern  part  of  the  island 
the  Portuguese  enclave  of  Noemuti  to  the  Netherlands.  On  the 
other  hand,  during  the  negotiations  of  1902  the  Netherlands  re- 
nounced raising  the  greater  question  of  whether  Oikussi  Ambenu 
was,  as  the  treaty  of  1859  indicated  it,  an  enclave  rightfully  re- 
verting to  them.  This  agreement  was  reached  under  the  condition, 
expressly  accepted  by  Portugal,  of  adopting  for  the  eastern  frontier 
of  the  kingdom  of  Oikussi  (Ambenu)  line  A-C  claimed  by  the 
Netherlands  during  the  negotiations  of  1902.  This  line  A-C  was 
established  by  the  treaty  of  1904.  (See  map  annexes  I and  II.) 

4.  Point  C of  this  line  is  not  disputed ; it  is  located  on  the  north 
coast  of  the  Island  of  Timor,  at  the  embouchure  of  the  Noel  Meto 
into  the  sea,  the  course  of  which  river  was  substituted  in  1902-1904 
for  the  course  of  the  Noel  Boll  Bass  river,  located  farther  east 
and  claimed  by  Portugal. 

The  course  of  the  Noel  Meto,  of  which  the  thalweg  was  to  serve 
as  the  frontier  as  far  as  the  source,  was  recognized,  is  not  disputed, 
and  a mete  was  set  contradictorily  at  its  source. 

5.  Point  A at  the  southern  end  of  the  line  agreed  on  in  1904,  is 

the  point  where  the  boundary  work  was  interrupted  in  1899.  This 
has  not  been  disputed  seriously  by  Portugal,  who  twice  in  the  first 
Case  uses  the  words:  “It  can  not  be  denied  that  the  line  starts 

from  point  A,  to  which  the  procds-verbaiix  of  the  negotiations  refer 
(p.  10).  . . . It  is  not  disputed  that  the  frontier  concerned 

does  not  start  from  the  point  where  the  surveyors  of  1899  were 
hindered  from  going  any  farther”  (p.  15).  To  dispute  the  location 
of  point  A would  again  put  in  question  the  boundary  of  the  lower 
course  of  the  Noel  Bilomi  down-stream  from  that  point;  now,  that 
part  of  the  frontier  was  settled  definitely  by  No.  9 of  Article  3 of 


THE  ISLAND  OF  TIMOR  CASE 


381 


the  treaty  of  1904;  moreover,  point  A was  marked  contradictorily 
on  the  official  maps  of  1899  and  1904  (see  annexes  III  and  IV). 

6.  Starting  from  point  A the  negotiators  of  1902-1904  found 
themselves  confronted  with  two  proposals.  One,  the  Portuguese 
proposal,  consisted  in  ascending  the  Noel  Bilomi  river  as  a frontier 
in  an  easterly  direction  as  far  as  Nunkala’i,  then  directing  the  fron- 
tier to  the  north,  through  Humusu,  finally  striking  the  source  of 
the  Noel  Boll  Bass  spilling  into  the  sea  east  of  the  Noel  Meto  (line 
B-D).  The  other,  the  Dutch  proposal,  said  A-C  line,  consisted  in 
striking  north  from  point  A as  far  as  the  sources  of  the  Noel  Meto. 
The  negotiators  clearly  and  categorically  repudiated  the  first  Portu- 
guese survey  to  accept  the  second  line  A-C  claimed  by  the  Nether- 
lands; on  the  map  annexed  to  the  treaty  of  1904  they  granted  to 
the  Netherlands  both  banks  of  the  Noel  Meto  upstream  from  point 
A,  at  which  the  boundary  runners  had  stopped  their  work  in  1899 
(see  maps  III  and  IV). 

7.  The  descriptions  of  this  line  A-C  in  the  treaty  of  1904,  Article 
3,  No.  10,  the  maps  contradictorily  sketched  in  1899,  and  on  which 
the  negotiators  of  1902  deliberated,  and  finally  the  official  map 
annexed  to  the  treaty  of  1904,  mention  an  affluent  at  point  A as 
properly  forming  a boundar}^  in  a northerly  direction,  to  which 
all  parties  gave  the  name  of  Oe-Sunan  from  1899  to  1909.  To-day 
all  parties  agree  this  affluent  really  bears  the  name  of  Kabun  or 
Leos.  Another  river  subsequently  discovered  about  six  kilometers 
farther  east  bears  the  name  of  Oe  Sunan  according  to  the  Portu- 
guese, and  rises  north  of  Kinapua,  a mountain  situate  very  near  the 
north  bank  of  the  Bilomi.  The  existence  of  this  Oe  Sunan  stream 
is  contested  by  the  Netherlands,  in  their  second  Case,  following  two 
recent  reconnaissances : this  alleged  Oe-Sunan  really  would  be  called 
Poeamesse  or  Noel  Polan. 

In  the  mind  of  the  arbitrator  it  is  impossible  that  this  other  Oe 
Sunan  river,  if  it  exist,  could  have  been  the  one  the  negotiators 
of  1899  and  of  1902 — 1904  had  in  view,  for 

(a)  It  is  not  an  affluent  of  the  Noel  Bilomi; 

(b)  The  frontier  proposed  by  Portugal  at  this  period  and 
mapped  by  common  agreement  in  1902-1904  was,  starting  from 
point  A and  proceeding  easterly,  to  pass  through  Nunkalai  then 


382 


THE  HAGUE  COURT  REPORTS 


through  Kinapua;  now  Nunkalai  is  situated  many  kilometers  west 
of  Mount  Kinapua  and  west  of  the  source  of  this  new  river  called 
Oe  Sunan  by  the  Portuguese ; 

(c)  Both  banks  of  the  Noel  Bilomi  upstream  to  the  east  of  point 
A having  been  granted  to  the  Netherlands  in  1904,  the  affluent  that 
is  to  serve  as  a frontier  in  a northerly  direction  cannot  be  sought 
upstream  and  east  of  point  A. 

General  principles  for  the  interpretation  of  conventions  demand 
that  account  be  taken  “of  the  real  and  mutual  intention  of  the  par- 
ties without  pausing  on  inexact  expressions  or  terms  which  possibly 
they  have  used  erroneously.”  It  is  true  that  the  parties  erred  in 
giving  the  name  Oe  Sunan  to  the  affluent  coming  to  point  A from 
the  north,  but  this  is  the  only  affluent  (then  erroneously  called  Oe 
Sunan)  which,  in  the  harmonious  thinking  of  the  parties,  was  neces- 
sarily the  pKjint  at  which  the  frontier  ought  to  leave  the  Noel  Bilomi 
to  proceed  north, — and  not  any  other  river  to  which  the  Portuguese 
give  the  name  Oe  Sunan  and  which  would  be  located  six  kilo- 
meters farther  east.  In  other  words,  the  thalweg  of  the  river  to-day 
called  Kabun  or  Leos  is  what  ought  to  serve  as  the  frontier  from 
point  A north. 

8.  Starting  south  from  the  source  of  this  Kabun  or  Leos  river 
(wrongly  called  Oe  Sunan  from  1899  to  1909)  the  frontier,  ac- 
cording to  the  tenor  of  Article  3,  No.  10,  of  the  treaty  of  1904, 
ought  “to  cross  Nipani  and  Kelali  (Keli)  as  much  as  possible”  to 
reach  the  source  of  the  Noel  Meto  to  the  north. 

The  boundary  proposed  by  the  Portuguese  would  go  completely 
around  that  region  designated  under  the  name  of  Nipani  on  the 
official  map  of  1904  and  according  to  that  map  situated  near  the 
source  of  the  Kabun  or  Leos;  the  frontier  would  be  several  kilo- 
meters distant  from  Nipani  in  an  easterly  direction.  Even  if,  as 
does  a Portuguese  map  which  has  no  character  because  being  con- 
tradictorily acknowledged,  one  gives  the  name  of  Nipani  to  a re- 
gion located  much  more  to  the  north,  east  of  the  sources  of  the 
Noel  Meto,  the  frontier  claimed  by  Portugal  would  not  the  more 
cross  Nipani,  but  would  go  around  it  to  the  north. 

The  treaty  of  1904  prescribes  the  crossing  of  Nipani  “as  much  as 
possible.”  The  survey  suggested  by  the  Netherlands  runs  along 


THE  ISLAND  OF  TIMOR  CASE 


383 


the  western  part  of  Nipani  and  is  nearer  to  it  than  the  survey  pro- 
posed by  Portugal. 

9.  Portugal  objects  that  the  line  due  north  and  south  between 
the  sources  of  the  Kabun  and  the  Noel  Meto  rivers  would  parcel 
the  territory  of  the  Ambenos,  granting  part  to  the  Netherlands  and 
part  to  Portugal;  this  parcelling  would  be  contrary  to  the  treaty 
of  1859. 

In  the  mind  of  the  arbitrator,  this  objection  is  not  established 
in  the  sense  that  already  in  1859  a “part”  of  Ambeno  was  placed  in- 
contestably under  the  sovereignty  of  the  Netherlands.  Besides,  in 
the  course  of  the  negotiations  from  1899  to  1904,  contradictory 
declarations  of  the  natives  were  produced,  the  Dutch  Amakonos 
and  Tumbabas  claiming  the  disputed  territory,  and  the  Portuguese 
Ambenos  claiming  it  from  their  side.  Thus  the  alleged  parcelling 
is  not  demonstrated.  More,  it  was  understood  in  the  conferences 
of  1902,  on  the  observation  of  the  first  Portuguese  delegate  himself, 
that  there  was  no  need  to  be  extensively  preoccupied  with  the  pre- 
tensions of  the  tribes  who  frequently  displaced  each  other  and  passed 
successively  from  the  territory  of  one  of  the  States  to  that  of  the 
other.  The  objection  that  the  territories  of  even  one  tribe  should 
not  be  parcelled  could  not  be  entertained  by  the  arbitrator,  for  it 
would  need  to  have  been  presented  during  the  course  of  the  negoti- 
ations from  1902-1904;  at  this  time  it  is  too  late,  because  the  treaty 
of  1904,  Article  3,  No.  10  (all  that  the  arbitrator  had  to  interpret), 
makes  no  mention  of  any  intention  of  the  parties  never  to  divide 
native  populations;  on  the  contrary,  that  treaty  ran  the  boimdary 
line  according  to  the  conferences  in  the  course  of  which  it  was  un- 
derstood that  considerations  of  that  kind  ought  not  to  be  prepon- 
derant. 

10.  The  summit  line  proposed  by  the  Government  of  the  Nether- 
lands between  the  source  of  the  river  Kabun  (Leos)  to  the  south, 
and  the  source  of  the  Noel  Meto  to  the  north,  is  sufficiently  natural 
to  be  surveyed  on  land  without  great  practical  difficulties.  It  offers 
the  advantage  that  the  water-courses  uniformly  descend  from  that 
summit  line  toward  the  territories  placed  wholly  under  Dutch  sov- 
ereignty. The  survey  suggested  by  the  Portuguese  Government, 


384 


THE  HAGUE  COURT  REPORTS 


on  the  contrary,  would  attribute  the  upper  and  the  lower  part  of 
these  several  streams  to  different  sovereignties. 

11.  In  a general  way,  in  fact,  the  demand  of  Portugal  reproduces 
completely,  for  all  the  territory  between  the  Noel  Bilomi  to  the  south 
and  the  Noel  Meto  to  the  north,  the  line  that  that  State  claimed  in 
1902  and  abandoned  at  the  end  of  the  conference  of  1902  and  in 
the  treaty  of  1904.  If  the  present  Portuguese  claim  were  estab- 
lished, it  would  not  be  explained  why  the  Netherlands  in  1902  made 
a sine  qua  non  condition  of  the  rejection  of  this  Portuguese  de- 
mand. Conventions  between  States,  like  those  between  individuals, 
ought  to  be  interpreted  “rather  in  the  sense  in  which  they  can  have 
some  effect  than  in  the  sense  in  which  they  can  produce  none.”  The 
Dutch  threat  to  break  off  the  negotiations  in  1902  would  have  meant 
nothing  if  the  intention  had  been  to  grant  Portugal  precisely  the 
territory  claimed  by  the  Netherlands  as  a condition  for  agreement. 

12.  Finally,  if  we  take  the  point  of  view  of  equity,  which  it  is 
important  not  to  lose  sight  of  in  international  relations,  the  summit 
line  proposed  by  the  Netherlands  is  not  contrary  to  equity,  in  the 
sense  that  Portugal  will  receive  more  territory  than  it  had  reason 
to  hope  for  according  to  the  theoretical  line  A-C,  to  which  she  con- 
sented in  1904,  before  the  land  could  be  explored.  Line  A-C  is 
wholly  inside  the  territory  that  will  revert  to  Portugal ; the  Portu- 
guese Republic,  in  fact,  will  receive  a better  share  than  it  ought  to 
expect  there  (see  map  appended  VII).  If,  on  the  contrary,  the 
eastern  survey  suggested  by  the  Portuguese  Government  were 
adopted,  the  Netherlands  could  rightfully  allege  that  they  were  being 
deprived  of  almost  all  the  territory  which  theoretically  was  granted 
to  them  in  1904  as  compensation  for  abandoning  the  enclave  of 
Maukatar  in  the  center  of  the  Island  of  Timor  and  in  compensation 
for  abandoning  Dutch  claims  to  the  whole  of  the  Ambeno  enclave. 

Consequently, 

The  arbitrator,  considering  the  two  treaties  signed  at  Lisbon, 
April  20,  1859,  and  June  10,  1893,  and  the  treaty  signed  at  The 
Hague,  October  1,  1904,  between  the  Netherlands  and  Portugal  for 
the  boundary  of  their  respective  possessions  in  the  Island  of  Timor; 

Considering  the  compromis  of  arbitration  signed  at  The  Hague, 
April  3,  1913,  and  notably  Article  2 thus  couched : “The  arbitrator. 


THE  ISLAND  OF  TIMOR  CASE 


385 


acting  upon  the  data  furnished  by  the  parties,  shall  decide,  on  the 
basis  of  the  treaties  and  the  general  principles  of  international  law, 
conformably  to  Article  3,  No.  10  of  the  convention  concluded  at 
The  Hague,  October  1,  1904,  concerning  the  boundary  of  the  Dutch 
and  Portuguese  possessions  in  the  Island  of  Timor,  how  the  boun- 
dary-line should  be  fixed,  starting  from  the  Noel  Bilomi,  up  to  the 
source  of  the  Noel  Meto” ; 

Considering  the  diplomatic  notes  designating  the  undersigned  as 
arbitrator  through  the  application  of  Article  1 of  the  compromis ; 

Considering  the  first  and  second  Cases  deposited  in  due  time  by 
each  of  the  high  contracting  Parties,  as  well  as  the  maps  and  docu- 
ments annexed  to  the  said  Cases ; 

Considering  the  statements  of  fact  and  of  law  formulated  above 
under  Nos.  I to  VII; 

Considering  the  convention  signed  at  The  Hague,  October  18, 
1907,  for  the  pacific  settlement  of  international  disputes ; makes  the 
following 

Award 

Article  3,  No.  10,  of  the  convention  concluded  at  The  Hague, 
October  1,  1904,  concerning  the  boundary  of  Dutch  and  Portuguese 
possessions  in  the  Island  of  Timor,  ought  to  be  interpreted  conform- 
ably with  the  conclusions  of  the  Royal  Government  of  the  Nether- 
lands for  the  boundary,  starting  from  the  Noel  Bilomi,  up  to  the 
source  of  the  Noel  Meto;  consequently,  it  will  proceed  to  the  survey 
of  that  part  of  the  frontier  on  the  basis  of  the  map  scaled  at  1/50,000 
annexed  under  No.  IV  of  the  first  Case  deposited  with  the  arbi- 
trator by  the  Dutch  Government.  A reproduction  of  this  map  signed 
by  the  arbitrator  is  appended  as  annex  VII  to  the  present  award  of 
which  it  shall  be  an  integral  part. 

Expenses,  fixed  at  2,000  francs,  have  been  deducted  from  the 
sum  of  4,000  francs  consigned  to  the  hands  of  the  arbitrator  in  exe- 
cution of  Article  8 of  the  compromis  of  April  3,  1913;  the  remain- 
der, or  2,000  francs,  shall  be  remitted  in  equal  shares  to  the  two 
parties,  and  receipted,  at  the  moment  of  the  notification  of  the 
award. 


386 


THE  HAGUE  COURT  REPORTS 


Done  in  three  originals,  of  which  one  shall  be  deposited  and  re- 
ceipt therefor  taken  by  the  secretary  general  of  the  International 
Bureau  of  the  Permanent  Court  of  Arbitration  at  The  Hague,  with 
his  Excellency  the  Minister  of  Foreign  Affairs  of  the  Netherlands 
as  notification  to  the  Royal  Government  of  the  Netherlands,  and 
of  which  the  second  shall  be  deposited  on  the  same  day  and  in  the 
same  form  with  his  Excellency  the  Envoy  Extraordinary  and  Min- 
ister Plenipotentiary  of  the  Portuguese  Republic  near  Her  Majesty 
the  Queen  of  the  Netherlands,  as  notification  to  the  Government  of 
the  Portuguese  Republic.  The  third  original  shall  be  deposited  in 
the  archives  of  the  International  Bureau  of  the  Permanent  Court 
of  Arbitration. 

Paris,  June  25,  1914. 


Lardy 


1 114? 


I««6 


I 


Annexe  U 


AiinexeBI 


Hl9X39nnA 


Annexe  V 


t 


YsKsniiA 


gg»dSiug.^^  ^fc  (fi  fifiUk^f 

LitfuiB  odaptBe  par^§''^e^ {bTrunissians. 

O Merre  borriB  d^d>  dress^O'lasou/'ce'delay.Mf^.^feto.  ^ 
-----  JjOnzte  proposBB  pan  la  Cammissioru  neeHandaise,.  * 
JmtuIb ppoposee par  la  Cammissiorv portugaise. 

^ Juint  oiujubL  les  tnavaux,  ont  /fyl-  etre  suspendus 
ea  1899  (Wnfluent  de  laBilomt  etde.1  ’affujent 
...  Twmme  par  errexxr  le  Oe  Surunv. 

(A/  B^ottv  djoTuiB  par  les  Amhena’s. 

(T)  Ntmv  donne par  les  Ihmbaias. 

-o— o— o JAmite  arrets  darts  Vart.  Z sxdt.9 dela Carcaentwri/ 
de  1904. 

Li'  ^ . 9T5uta04«. 


A. 


I 


b,-*' 


Lea  noma  inscrita  at  bUwsontceucdelaaatB 
— ‘•■laise. 


: NOVItlS  PETERS  CO..  WASHINGTON,  D.  C 


THE  ISLAND  OF  TIMOR  CASE 


387 


AGREEMENT  FOR  ARBITRATION 


Compromis  for  the  settling  of  differences  in  the  interpretation  of  the 
treaty  of  October  i,  1^04,  relative  to  the  boundary  in  the  Island  of 
Timor. — Signed  at  The  Hague,  April  j,  1913.^ 

Her  Majesty  the  Queen  of  the  Netherlands  and  the  President  of 
the  Republic  of  Portugal,  considering  that  the  execution  of  the  con- 
vention concluded  between  the  Netherlands  and  Portugal  at  The 
Hague,  October  1,  1904,^  regarding  the  delimitation  of  the  Dutch  and 
Portuguese  possessions  in  the  Island  of  Timor,  has  led  to  a dispute 
concerning  the  surveying  of  that  part  of  the  boundary  referred  to 
under  Article  3,  No.  10,  of  the  said  convention ; 

Desiring  to  settle  this  dispute  in  a friendly  manner ; 

In  view  of  Article  14  of  the  said  convention  and  of  Article  38  of 
the  convention  for  the  pacific  settlement  of  international  disputes,  con- 
cluded at  The  Hague,  October  18,  1907 ; 

Have  designated  as  their  plenipotentiaries,  to  wit : 


Who,  duly  authorized  to  that  end,  have  agreed  upon  the  following 
articles : 


Article  1 


The  Government  of  Her  Majesty  the  Queen  of  the  Netherlands  and 
the  Government  of  the  Portuguese  Republic  agree  to  submit  the  afore- 
mentioned dispute  to  a sole  arbitrator  to  be  chosen  from  the  member- 
ship of  the  Permanent  Court  of  Arbitration. 

If  the  two  Governments  should  not  agree  upon  the  selection  of  the 
said  arbitrator,  they  shall  request  the  President  of  the  Swiss  Confed- 
eration to  designate  him. 

Article  2 


The  arbitrator,  acting  upon  the  data  furnished  by  the  parties,  shall 
decide  on  the  basis  of  the  treaties  and  the  general  principles  of  inter- 
national law,  conformably  to  Article  3,  No.  10,  of  the  convention  con- 
cluded at  The  Hague,  October  1,  1904,  concerning  the  boundary  of 
the  Dutch  and  Portuguese  possessions  in  the  Island  of  Timor,  how 


^Translation.  For  the  original  French  text,  see  Appendix,  p.  596. 
^Post,  p.  396. 


388 


THE  HAGUE  COURT  REPORTS 


the  boundary-line  should  be  fixed  starting  from  the  Noel  Bilomi,  up 
to  the  source  of  the  Noel  Meto. 

Article  3 

Through  the  intermediary  of  the  International  Bureau  of  the  Per- 
manent Court  of  Arbitration,  each  of  the  parties  shall  transmit  to  the 
arbitrator,  within  three  months  after  the  exchange  of  the  ratifications 
of  the  present  convention,  a memoir  containing  an  exposition  of  its 
rights  and  the  documents  in  support  thereof,  and  shall  immediately 
forward  a certified  copy  thereof  to  the  other  party. 

Upon  the  expiration  of  the  period  herein  stated,  each  of  the  parties 
shall  be  entitled  to  another  period  of  three  months  to  transmit,  if  it 
deems  it  expedient,  to  the  arbitrator,  through  the  intermediary  herein- 
before indicated,  a second  memoir  of  which  it  transmit  a certified  copy 
to  the  other  party. 

The  arbitrator  is  authorized  to  grant  to  each  of  the  parties  so  desir- 
ing, a prorogation  of  two  months  regarding  the  periods  mentioned  in 
this  article.  He  shall  give  notification  of  each  prorogation  to  the 
adverse  party.^ 

Article  4 

After  the  exchange  of  these  memoirs,  no  communication,  either  writ- 
ten or  verbal  shall  be  made  to  the  arbitrator,  unless  the  latter  requests 
of  one  or  both  of  the  parties  additional  information  in  writing. 

The  party  furnishing  such  information  shall  immediately  forward  a 
certified  copy  thereof  to  the  other  party,  and  the  latter  may,  in  its 
discretion,  within  a period  of  two  months  after  the  receipt  of  the  said 
copy,  communicate  in  writing  to  the  arbitrator,  such  observations  as 
may  be  necessary.  A certified  copy  of  these  observations  shall  also  be 
communicated  immediately  to  the  adverse  party. 

Article  5 

The  arbitrator  shall  render  his  decision  in  a place  to  be  designated 
by  him. 

Article  6 

The  arbitrator  shall  use  the  French  language  both  in  rendering  his 
decision  and  in  the  communications  that  he  may  have  occasion  to 

>A  prorogation  of  two  months  was  granted  to  the  parties  by  the  arbitrator 
for  the  transmittal  of  their  second  memoirs. 


THE  ISLAND  OF  TIMOR  CASE 


389 


address  to  the  parties  in  the  course  of  the  procedure.  Memoirs  and 
other  communications  coming  from  the  parties  themselves  shall  be 
v.'ritten  in  the  same  language. 


Article  7 

The  arbitrator  shall  decide  all  questions  that  might  arise  with  regard 
to  procedure  during  the  course  of  the  litigation. 

Article  8 

Immediately  after  the  ratifications  of  the  present  convention,  each 
of  the  parties  shall  deposit  with  the  arbitrator,  in  advance,  the  sum  of 
2,CXX)  francs  to  cover  the  expenses  of  the  procedure. 

Article  9 

The  decision  shall  be  communicated  in  writing  by  the  arbitrator  to 
the  parties. 

It  shall  state  the  reasons  upon  which  it  is  based. 

In  his  decision,  the  arbitrator  shall  state  the  amount  of  the  expenses 
of  the  procedure.  Each  party  shall  bear  its  own  personal  expenses 
and  one-half  each  the  said  expenses  of  procedure. 

Article  10 

The  parties  obligate  themselves  to  accept  as  final  the  decision  ren- 
dered by  the  arbitrator  in  accordance  with  the  provisions  of  the  pres- 
ent convention  and  to  abide  by  it  without  any  reservation  whatever. 

The  dispute  concerning  the  execution  of  the  decision  shall  be  re- 
ferred to  the  arbitrator. 


Article  11 

The  present  convention  shall  be  ratified  and  shall  become  binding 
immediately  after  the  exchange  of  ratifications,  which  shall  take  place 
at  The  Hague  as  soon  as  possible. 

In  faith  of  which,  the  respective  plenipotentiaries  have  signed  the 
present  convention  and  have  affixed  their  seals  thereto. 

Done  in  duplicate  at  The  Hague,  April  3,  1913. 

(L.  S.)  (Signed)  R.  de  Marees  van  Swinderen 

(L.  S.)  (Signed)  Antonio  Maria  Bartholomeu  Ferreira 


390 


THE  HAGUE  COURT  REPORTS 


ADDITIONAL  DOCUMENTS 

Agreement  between  the  Netherlands  and  Portugal  relative  to  the 
boundary  of  their  possessions  in  the  archipelago  of  Timor  and 
Solor. — Signed  at  Lisbon,  April  20,  iSjpl 

His  Majesty  the  King  of  the  Netherlands,  His  Majesty  the  King  of 
Portugal  and  the  Algarves,  believing  it  to  be  necessary  finally  to  settle 
the  existing  incertitudes  regarding  the  boundaries  of  Dutch  and  Por- 
tuguese possessions  in  the  archipelago  of  Timor  and  Solor,  and  desir- 
ing to  prevent  forever  any  misunderstanding  that  might  arise  because 
of  ill-defined  boundaries  and  too  numerous  enclaves,  have  with  that 
end  in  view,  conferred  their  full  power,  to  wit: 


Who,  after  having  communicated  to  each  other  the  said  full  powers, 
found  in  good  and  due  form,  have  agreed  to  conclude  a treaty  of  de- 
markation  and  exchange,  containing  the  following  articles: 


Article  1 


The  boundaries  between  the  Dutch  and  Portuguese  possessions  in 
the  Island  of  Timor  shall  be  on  the  north,  the  frontiers  separating 
Cova  from  Juanilo;  and  on  the  south,  those  that  separate  Sua  from 
Lakecune. 

Between  these  two  points,  the  boundaries  of  the  two  possessions 
shall  be  the  same  as  those  between  the  contiguous  Dutch  and  Portu- 
guese States. 

These  States  are  as  follows: 


Contiguous  States  under  the 
Sovereignty  of  the  Netherlands 
Juanilo 
Silawang 

Fialarang  (Fialara) 
Lamaksanulu 
Lamakanee 
Naitimu  (Nartimu) 

Manden 

Dirma 

Lakecune 


Contiguous  States  under  the 
Sovereignty  of  Portugal 
Cova 
Balibo 
Lamakitu 

Tafakaij  ou  Takaij 

Tatumea 

Lanken 

Dacolo 

Tamiru  Eulalang  (Eulaleng) 
Suai 


Article  2 


The  Netherlands  recognizes  the  sovereignty  of  Portugal  over  all 
the  States  to  the  east  of  the  boundaries  thus  defined,  excepting  the 


^Translation.  For  the  orginal  French  text,  see  Appendix,  p.  599. 


THE  ISLAND  OF  TIMOR  CASE 


391 


Dutch  State  of  Maucatar  or  Calunineme  (Coluninene),  which  extends 
into  the  Portuguese  States  of  Lamakitu,  Tanterine,  Follafaix  (Folle- 
fait)  and  Suai. 

Portugal  recognizes  the  sovereignty  of  the  Netherlands  over  all  the 
States  west  of  these  boundaries,  excepting  the  extensional  territory 
of  Oikoussi,  which  remains  Portuguese. 

Article  3 

The  enclave  of  Oikoussi  includes  the  State  of  Ambenu  wherever 
the  Portuguese  flag  flies,  the  State  of  Oikoussi  itself  and  the  State 
of  Noimuti. 

The  boundaries  of  this  enclave  are  the  frontiers  between  Ambenu 
and  Amfoang  to  the  west,  of  Insana  and  Reboki  (Beboki)  including 
Cicale  on  the  east,  and  Sonnebait,  including  Amakono  and  Tunebaba 
(Timebaba)  on  the  south. 

Article  4 

On  the  Island  of  Timor,  Portugal  recognizes  therefore  the  sover- 
eignty of  the  Netherlands  over  the  States  of  Amarassi,  Bibico 
(Traijnico,  Waijniko),  Buboque  (Reboki),  Derima  (Dirma),  Fialara 
(Fialarang),  Lamakanee,  Nira  (Lidak),  Juanilo,  Mena  and  Fulgarite 
or  Folgarita  (dependencies  of  the  State  of  Harnenno). 

Article  5 

The  Netherlands  yields  to  Portugal  the  kingdom  of  Moubara  (Mau- 
bara)  and  that  portion  of  Ambenu  (Sutrana)  which,  for  several  years 
past,  has  flown  the  Portuguese  flag. 

Immediately  after  the  exchange  of  ratifications  of  this  treaty  by 
Their  Majesties  the  King  of  the  Netherlands  and  the  King  of  Por- 
tugal shall  have  taken  place,  the  Government  of  the  Netherlands  shall 
direct  the  superior  authorities  of  the  Dutch  Indies  to  convey  the 
kingdom  of  Moubara  (Maubara)  to  the  superior  authorities  of  Timor 
Dilly. 

Article  6 

The  Netherlands  disclaims  any  pretension  whatever  over  the  Island 
of  Kambing  (Pulo  Kambing),  on  the  north  of  Dilly,  and  recognizes 
Portuguese  sovereignty  over  this  island. 


392 


THE  HAGUE  COURT  REPORTS 


Article  7 

« 

Portugal  yields  to  the  Netherlands  the  following  possessions; 

On  the  island  of  Flores,  the  States  of  Larantuca,  Sicca,  Paga,  with 
their  dependencies; 

On  the  island  of  Adenara,  the  State  of  Woure; 

On  the  island  of  Solor,  the  State  of  Pamangkaju. 

Portugal  disclaims  all  pretensions  it  might  possibly  have  entertained 
with  regard  to  other  States  or  localities  situate  on  the  above-named 
islands,  or  upon  those  of  Lomblen,  Pantar  and  Ombaij,  whether  these 
States  fly  the  Dutch  or  Portuguese  flag. 

Article  8 

By  reason  of  the  provisions  of  the  preceding  article,  the  Nether- 
lands obtains  full  and  undivided  possession  of  all  islands  situate  on 
the  north  of  Timor,  to  wit : those  of  Flores,  Adenara,  Solor,  Lomblen, 
Pantar  (Quantar)  and  Ombaij,  together  with  the  near  islands  belong- 
ing to  the  archipelago  of  Solor. 

Article  9 

And  as  compensation  for  what  Portugal  might  lose  by  the  exchange 
of  the  above-mentioned  respective  possessions,  the  Government  of 
the  Netherlands: 

1.  Shall  give  to  the  Portuguese  Government  a complete  quit-claim 
to  the  sum  of  80,000  florins,  borrowed  in  1851  from  the  Government 
of  the  Dutch  Indies  by  the  Government  of  the  Portuguese  possessions 
in  the  archipelago  of  Timor; 

2.  Shall  deliver  in  addition  to  the  Portuguese  Government  a sum  of 
120,000  Netherland  florins. 

This  amount  shall  be  payable  one  month  after  the  exchange  of  rati- 
fications of  the  present  treaty. 

Article  10 

The  freedom  of  worship  is  mutually  guaranteed  to  the  inhabitants 
of  the  territories  exchanged  in  virtue  of  the  present  treaty. 

Article  11 

The  present  treaty,  which  in  conformity  with  the  rules  prescribed 
by  the  fundamental  laws  in  force  in  the  kingdoms  of  the  Netherlands 


THE  ISLAND  OF  TIMOR  CASE 


393 


and  Portugal,  shall  be  submitted  to  the  legislative  powers  for  ratifica- 
tion, and  the  ratifications  shall  be  exchanged  at  Lisbon,  within  a period 
of  eight  months  from  the  date  of  its  signature,  or  sooner  if  possible. 

In  faith  of  which  the  respective  plenipotentiaries  have  signed  the 
present  treaty  and  affixed  thereto  the  seal  of  their  arms. 

Done  at  Lisbon,  April  20,  1859. 

(L.  S.)  (Signed)  A.  M.  de  Fontes  Pereira  de  Mello 
(L.  S.)  (Signed)  M.  Heldewier 


Convention  between  the  Netherlands  and  Portugal  relative  to  com- 
merce, navigation,  boundaries,  and  mutual  rights  of  preemption  as 
regards  their  respective  possessions  in  the  Timor  and  Solor  archi- 
pelago.— Signed  at  Lisbon,  June  lo, 

Her  Majesty  the  Queen  of  the  Netherlands  and  in  her  name  Her 
Majesty  the  Queen  Regent  of  the  Kingdom  and 
His  Majesty  the  King  of  Portugal  and  the  Algarves,  realizing  the 
community  of  interests  existing  between  their  possessions  in  the  archi- 
pelago of  Timor  and  Solor  and  desiring  by  mutual  good-will  to  deter- 
mine the  conditions  most  favorable  for  the  advancement  of  civiliza- 
tion and  commerce  in  their  possessions,  have  resolved  to  conclude  a 
special  convention  and  to  that  end  have  designated  their  plenipoten- 
tiaries, to  wit: 


Who,  after  having  communicated  to  each  other  their  respective  full 
powers,  found  in  good  and  due  form,  have  agreed  upon  the  following 
articles : 

Article  1 

In  order  to  facilitate  the  exercise  of  their  rights  of  sovereignty,  the 
high  contracting  parties,  believe  it  to  be  necessary  to  establish  in  the 
clearest  and  most  exact  manner  the  boundary  of  their  possessions  on 
the  island  of  Timor  and  to  abolish  the  enclaves  existing  at  the  present 
time. 

Article  2 

The  high  contracting  Parties  shall  appoint  to  that  end  a commission 
of  experts  whose  duty  it  shall  be  to  formulate  a proposition  which 
may  serve  as  a basis  for  the  conclusion  oLa«^ji^^Uenf  ‘con^ntion 
determining  the  new  boundary  lines  in  tnl*  said  island. 

^Translation.  For  the  original  French  text,  see 


394 


THE  HAGUE  COURT  REPORTS 


This  convention  shall  be  submitted  to  the  approbation  of  the  legisla- 
tures of  the  two  countries. 

Article  3 

Within  the  Island  of  Timor  there  shall  be  granted  to  fishing  vessels 
belonging  to  the  subjects  of  each  of  the  high  contracting  Parties,  as 
well  as  to  their  crews,  the  same  protection  on  the  part  of  the  respective 
authorities  as  that  enjoyed  by  their  respective  subjects. 

The  commerce,  industry  and  navigation  of  the  two  countries  shall 
enjoy  there  the  treatment  of  the  most  favored  foreign  nation,  excepting 
the  special  treatment  respectively  accorded  by  the  high  contracting 
Parties  to  the  indigenous  States. 

Article  4 

The  high  contracting  Parties  decide  that  the  importation  and  ex- 
portation of  firearms  or  parts  thereof,  or  cartridges,  capsules  or  other 
ammunition  intended  for  them,  are  prohibited  within  their  possessions 
in  the  archipelago  of  Timor  and  Solor. 

Independent  of  measures  directly  adopted  by  the  Governments  for 
the  arming  of  their  public  force  and  the  organization  of  their  de- 
fense, individual  exceptions  may  be  made  with  regard  to  their  Euro- 
pean subjects,  sufficient  guarantee  being  given  that  the  particular 
weapons  and  ammunition  that  might  be  furnished  them  shall  not  pass 
into  the  hands  of  or  be  sold  to  third  parties,  and  in  case  of  foreign 
travelers,  the  latter  shall  be  provided  with  a declaration  of  their 
Government  stating  that  the  weapon  and  the  ammunition  are  exclu- 
sively intended  for  their  personal  defense. 

Article  5 

The  suf>erior  authorities  of  the  Dutch  party  and  of  the  Portuguese 
party  in  the  Island  of  Timor  shall  nevertheless  be  authorized  to  deter- 
mine annually  by  mutual  agreement  the  number  and  kind  of  unper- 
fected firearms  and  the  amount  of  ammunition  that  may  be  received 
in  the  course  of  the  same  year,  as  well  as  the  conditions  under  which 
such  importations  may  be  granted. 

Such  importation,  may,  however,  take  place  only  through  the  inter- 
mediary of  certain  persons  or  agents  residing  in  the  island  itself,  who 
in  respect  to  this  matter  shall  have  obtained  special  authorization  from 
the  respective  superior  administration. 


THE  ISLAND  OF  TIMOR  CASE 


395 


In  case  such  authorization  is  abused,  it  shall  be  withdrawn  immedi- 
ately and  may  not  be  renewed. 

Article  6 

As  a proof  of  its  desire  of  establishing  good  neighborly  relations, 
the  Dutch  Government  hereby  declares  to  relinquish  its  claim  to  in- 
demnification to  which  it  believes  itself  entitled  as  a result  of  certain 
treatment  to  which  Dutch-Indian  fishermen  were  subjected  from 
1889-1892  on  the  part  of  the  Timor-Portuguese  authorities. 

Article  7 

In  case  difficulties  should  arise  with  regard  to  their  intercolonial 
relations  in  the  archipelago  of  Timor  and  Solor  or  with  regard  to  the 
interpretation  of  the  present  convention,  the  high  contracting  Parties 
agree  to  submit  such  difficulties  to  the  decision  of  an  arbitral  com- 
mission. 

This  commission  shall  be  composed  of  an  equal  number  of  arbitra- 
tors chosen  by  the  high  contracting  Parties  and  of  an  arbitrator  desig- 
nated by  these  arbitrators. 


Article  8 

The  present  convention  shall  be  ratified  and  the  ratifications  ex- 
changed at  Lisbon. 

In  faith  of  which,  the  plenipotentiaries  have  signed  the  same  and 
affixed  their  seals  thereto. 

Done  in  duplicate  at  Lisbon,  June  10,  1893. 

(L.  S.)  (Signed)  Carel  van  Heeckeren 

(L.  S.)  (Signed)  Ernesto  Rodolpho  Hintze  Ribeiro 


Declaration  Signed  at  Lisbon,  July  i,  i8p^,  regarding  Cession  of 

T erritory^ 

The  undersigned  plenipotentiaries  of'  the  Governments  of  the  sig- 
natories of  the  convention  of  June  10,  1893,^  have  agreed  upon  the 
following  declaration: 

In  order  to  insure  the  result  of  their  common  action  tending  espe- 


iTranslation.  For  the  original  French  text,  see  Appendix,  p.  603. 
^Ante,  p.  393. 


396 


THE  HAGUE  COURT  REPORTS 


cially  to  encourage  the  commerce  and  industry  of  their  nationals  by 
guarantees  of  security  and  stability,  the  high  contracting  Parties  de- 
clare that  in  case  of  cession  in  part  or  in  whole  of  their  territories  or 
of  their  rights  of  sovereignty  in  the  archipelago  of  Timor  and  Solor, 
they  mutually  recognize  the  right  of  preference  regarding  terms  sim- 
ilar or  equivalent  to  those  which  shall  have  been  offered.  Cases  of 
disagreement  as  to  these  terms  are  likewise  subject  to  the  application 
of  Article  7 of  the  aforesaid  convention. 

The  present  declaration  which  shall  be  ratified  at  the  same  time  as 
the  convention  concluded  at  Lisbon,  June  10,  1893,  shall  be  regarded 
as  an  integral  part  of  the  said  convention,  and  shall  have  the  same 
force  and  value. 

In  faith  of  which  the  respective  plenipotentiaries  have  signed  the 
present  declaration  and  affixed  their  seals  thereto. 

Done  in  duplicate  at  Lisbon,  July  1,  1893. 

(L.  S.)  (Signed)  Carel  van  Heeckeren 
(L.  S.)  (Signed)  Ernesto  Rodolpho  Ribeiro 


Convention  between  the  Governments  of  the  N etherlands  and  Por- 
tugal for  the  settlement  of  the  boundary  between  their  possessions 
in  the  Island  of  Timor. — Signed  at  The  Hague,  October  i,  1904.'^ 

Her  Majesty  the  Queen  of  the  Netherlands  and  His  Majesty  the 
King  of  Portugal  and  the  Algarves,  etc.,  etc. 

Recognizing  the  community  of  interests  existing  between  their  pos- 
sessions in  the  archipelago  of  Timor  and  of  Solor,  and  desiring  to  de- 
fine a clear  and  exact  boundary  of  these  possessions  in  the  Island  of 
Timor,  after  having  informed  themselves  of  the  result  of  the  labors 
of  the  mixed  commission  appointed  for  the  regularization  of  the 
Dutch  and  Portuguese  frontiers  in  the  Island  of  Timor,  established 
by  the  respective  Governments  in  virtue  of  Article  2 of  the  convention 
concluded  between  the  high  contracting  Parties  at  Lisbon,  June  10, 
1893,*  have  resolved  to  conclude  a convention  to  that  effect  and  have 
designated  as  their  plenipotentiaries: 

Who,  after  having  communicated  to  each  other  their  full  powers, 
found  in  good  and  due  form,  have  agreed  upon  the  following: 


^Translation.  For  the  original  French  text,  see  Appendix,  p.  604. 
^Ante,  p.  393. 


THE  ISLAND  OF  TIMOR  CASE 


397 


Article  1 

The  Netherlands  conveys  Maucatar  to  Portugal. 


Article  2 

Portugal  conveys  Noimuti,  Tahakay  and  Tamiru  Ailala  to  the 
Netherlands. 


Article  3 


The  boundary  between  Ambenu-Oikussi,  belonging  to  Portugal,  and 
the  Dutch  possessions  in  the  Island  of  Timor  is  formed  by  a line: 

1.  Starting  from  the  mouth  of  the  (river)  Noel  Besi  whence  the 
highest  point  on  the  (island)  Pulu-Batek  is  seen  under  an  astronom- 
ical azimuth  of  30',  47"  northwest,  following  the  thalweg  of  the  Noel 
Besi,  that  of  the  Noel  Niema  and  that  of  the  Bidjael  Sunan  to  its 
source ; 

2.  Ascending  from  this  point  to  the  summit  of  the  Bidjael  Sunan, 
and  descending  down  the  thalweg  of  the  Noel  Miu  Mavo  to  the  point 
situate  on  the  southwest  of  the  village  Oben ; 

3.  From  thence  passing  on  the  west  of  this  village  along  the  sum- 
mits Banat  and  Kita  to  the  summit  Nivo  Nun  Po;  from  thence  fol- 
lowing the  thalweg  of  the  rivers  Nono  Boni  and  Noel  Pasab  to  its 
affluent  the  Nono  Susu,  and  ascending  the  Nono  Susu  to  its  source; 

4.  Passing  the  Klus  (Crus)  to  the  point  where  the  frontier  between 
Abani  and  Nai  Bobbo  crosses  the  river  Fatu  Basin,  from  thence  to 
the  point  called  Subina; 

5.  Descending  thence  by  the  thalweg  of  the  Fatu  Basin  to  the  Ke 
An;  thence  to  the  Nai  Nad; 

6.  Crossing  the  Nai  Nad  and  descending  into  Tut  Nonie,  along  the 
thalweg  of  the  Tut  Nonie  to  the  Noel  Ekan ; 

7.  Following  the  thalweg  of  the  Noel  Ekan  to  the  affluent  the 
Sonau ; along  the  thalweg  of  this  affluent  to  its  source,  and  thence  to 
the  river  Nivo  Nono ; 

8.  Ascending  along  the  thalweg  of  this  river  to  its  source,  and  pass- 
ing the  point  called  Ohoe  Baki,  ending  at  the  source  of  the  Nono 
Balena; 

9.  Following  the  thalweg  of  this  river,  the  thalweg  of  the  Nono  Nise 
and  that  of  the  Noel  Bilomi  to  the  affluent  of  the  latter,  the  Oe  Sunan; 

10.  From  this  point,  the  boundary  follows  the  thalweg  of  the  Oe 
Sunan,  crosses  as  much  as  possible  Nipani  and  Kelali  (Keli)  and, 


398 


THE  HAGUE  COURT  REPORTS 


extending  to  the  source  of  the  Noel  Meto,  it  follows  the  thalweg  of 
the  latter  river  even  to  its  mouth. 

Article  4 

That  part  of  the  boundary  between  Ambenu-Oikussi  and  the  Dutch 
possessions  defined  under  Article  3,  No.  10,  shall  be  surveyed  and  de- 
markated  on  the  ground  as  soon  as  possible. 

The  survey  of  the  said  part  of  the  boundary  and  its  demarkation  on 
the  land  shall  be  attested  by  a proces-verbal  accompanied  by  a map 
to  be  traced  in  duplicate  which  shall  be  submitted  for  the  approval  of 
the  high  contracting  Parties ; after  their  approval,  the  said  documents 
shall  be  signed  in  the  name  of  the  respective  Governments. 

Only  after  the  said  documents  have  been  signed,  the  high  contracting 
Parties  shall  acquire  sovereignty  over  the  regions  mentioned  under 
Articles  1 and  2. 

Article  5 

The  boundary  between  the  Dutch  possessions  in  the  western  part 
and  of  the  Portuguese  possessions  in  the  eastern  part  of  the  Island 
of  Timor  shall  from  the  north  to  the  south  follow  a line: 

1.  Starting  from  the  mouth  of  the  Mota  Biku  (Silaba)  along  the 
thalweg  of  this  river  to  its  affluent  the  We  Bedain,  along  the  thalweg 
of  the  We  Bedain,  to  the  Mota  Asudaat  (Assudat),  along  the  thal- 
weg of  this  river  to  its  source,  and  following  thence  in  the  direction 
north  to  south  the  hills  of  the  Kleek  Teruin  (Klin  Teruln)  and  of 
the  Berenis  (Birenis)  Kakotun ; 

2.  Thence  to  the  river  Muda  Sorun,  following  the  thalweg  of  this 
river  and  that  of  the  Tuah  Naruk  even  to  the  river  Telau  (Talau)  ; 

3.  Following  the  thalweg  of  the  Telau  to  the  river  Malibaka  along 
the  thalweg  of  this  river,  the  thalweg  of  the  Mautilu  and  that  of  the 
Pepies  to  the  mountain  Bulu  Hulu  (Bulu  Bulu)  ; 

4.  From  there  to  Karawa  Kotun,  from  the  latter  along  the  thalweg 
of  the  river  Tafara  along  the  thalweg  of  this  river  to  its  source  called 
Mota  Tiborok  (Tibor),  and  ascending  from  there  to  the  summit  Dato 
Miet  and  descending  to  the  Mota  Alun; 

5.  Along  the  thalweg  of  the  Mota  Alun,  along  the  thalweg  of  the 
Mota  Sukaer  (Sukar),  and  that  of  the  Mota  Baukama  even  to  the 
affluent  of  the  latter  called  Kalan-Fehan ; 

6.  Passing  across  the  mountains  Tahi  Fehu,  Fatu  Suta,  Fatu  Rusa, 
passing  the  large  tree  called  Halifea  and  the  summit  Uas  Lulik,  then 
crossing  the  river  We  Merak  where  the  latter  receives  its  affluent 


THE  ISLAND  OF  TIMOR  CASE 


399 


the  We  Nu,  thence  crossing  the  large  boulder  called  Fatu  Rokon  and 
the  summits  Fitun  Monu,  Debu  Kasabauk,  Ainin  Matan  and  Lak  Fuin; 

7.  From  Lak  Fuin  to  the  point  where  the  Hali  Sobuk  connects  with 
the  Mota  Haliboi  and  along  the  thalweg  of  this  river  to  its  source; 

8.  From  this  source  even  to  that  of  the  Mota  Bebulu,  along  the  thal- 
weg of  this  river  to  the  We  Diek,  ascending  to  the  summits  Ai  Kakar 
and  Takis,  descending  into  the  Mota  Masin  and  following  the  thalweg 
of  the  Mota  Masin  and  of  its  mouth  called  Mota  Talas. 

Article  6 

With  the  exception  of  the  provisions  of  Article  4,  the  boundaries 
defined  under  Articles  3 and  5 are  traced  on  the  maps  annexed  to  the 
present  convention  and  signed  by  the  respective  plenipotentiaries. 

Article  7 

The  territories  respectively  conveyed  shall  be  vacated  and  the  de- 
markation  thereon  entrusted  to  competent  authorities  within  six 
months  after  the  approval  of  the  proces-verbal  referred  to  under 
Article  4. 

Article  8 

The  archives,  maps  and  other  documents  relating  to  the  territories 
transferred  shall  be  transmitted  to  the  new  authorities  at  the  same 
time  as  the  territories  themselves. 

Article  9 

Navigation  upon  the  rivers  forming  the  boundaries  shall  be  free  to 
the  subjects  of  the  two  high  contracting  Parties,  except  for  the  trans- 
portation of  firearms  and  ammunition. 

Article  10 

When  the  territory  shall  have  been  transferred,  stone  posts  indi- 
cating the  year  of  the  present  convention,  of  a form  and  dimensions 
proper  to  the  object  that  they  are  intended  to  fulfil,  shall  with  due 
solemnity  be  set  at  a proper  place  on  the  bank  near  the  mouth  of  the 
rivers  hereinafter  named.  The  Dutch  posts  shall  be  set  on  the  west- 
ern banks  of  the  Mota  Biku  and  the  Mota  Masin,  and  the  Portuguese 
posts  upon  the  eastern  banks  of  the  said  rivers.  Four  stone  posts 
shall  be  provided  by  the  Dutch  Government  at  the  expense  of  the  two 
Governments  and  the  Dutch  Government  shall  place  a vessel  of  the 


400 


THE  HAGUE  COURT  REPORTS 


royal  navy  at  the  disposal  of  the  respective  authorities  for  the  solemn 
transfer  of  the  territories  conveyed  and  for  the  setting  of  the  posts 

Furthermore,  where  it  is  not  formed  by  natural  limits,  the  boundary 
shall  by  mutual  agreement  be  demarkated  on  the  ground  by  the  local 
authorities. 

Article  11 

With  the  exception  of  the  provisions  of  Article  4,  a proces-verbal 
shall  be  drawn  up  in  the  French  language  recording  the  transfer  of 
the  territories  and  the  setting  of  the  posts. 

The  proces-verbal  shall  be  drawn  up  in  duplicate  and  signed  by  the 
respective  authorities  of  the  two  countries. 

Article  12 

Freedom  of  worship  is  mutually  guaranteed  to  the  inhabitants  of 
the  territories  exchanged  by  the  present  convention. 

Article  13 

The  high  contracting  Parties  mutually  recognize,  in  case  of  cession 
in  part  or  in  whole  of  their  territories  or  of  their  rights  of  sovereignty 
in  the  archipelago  of  Timor  and  Solor,  the  right  of  preference  regard- 
ing terms  similar  or  equivalent  to  those  which  shall  have  been  offered. 

Article  14 

All  disputes  regarding  the  interpretation  or  the  execution  of  the 
present  convention,  if  they  can  not  be  settled  in  a friendly  manner,  shall 
be  referred  to  the  Permanent  Court  of  Arbitration  in  conformity  with 
the  provisions  set  forth  in  Chapter  II  of  the  international  Convention 
of  July  29,  1899,  for  the  pacific  settlement  of  international  disputes. 

Article  15 

The  present  convention  shall  be  ratified  and  the  ratifications  thereof 
exchanged  as  soon  as  possible  after  the  approbation  by  the  legislatures^ 
of  the  two  countries. 

In  faith  of  which  the  respective  plenipotentiaries  have  signed  the 
present  convention  and  affixed  their  seals  thereto. 

Done  in  duplicate  at  The  Hague,  October  1,  1904 

(L.  S.)  (Signed)  Bn  Melvil  de  Lynden 

(L.  S.)  (Signed)  Idenburg 

(L.  S.)  (Signed)  Conde  de  Selir 


REPORTS 


OF  THE 

HAGUE  COMMISSIONS  OF  INQUIRY 


THE  NORTH  SEA  or  DOGGER  BANK  CASE' 

between 

GREAT  BRITAIN  and  RUSSIA 
Findings  Reported  February  26,  1905 

Syllabus 

In  October,  1904,  during  the  Russo-Japanese  war,  the  Admiral  of 
the  Russian  Baltic  fleet,  then  coaling  off  the  coast  of  Norway,  re- 
ceived rumors  from  several  sources  of  the  presence  of  Japanese  tor- 
pedo boats  in  the  vicinity,  and  on  this  account  the  fleet  set  sail  for  the 
Far  East  twenty-four  hours  ahead  of  schedule.  As  the  last  division 
of  the  fleet,  in  immediate  charge  of  the  Admiral,  was  passing  through 
the  North  Sea  in  the  early  hours  of  the  morning  of  October  9,  1904, 
it  came  upon  what  afterwards  proved  to  be  an  English  fishing  fleet 
from  Hull,  England.  The  Russians,  under  a misapprehension  that 
the  English  vessels  were  the  Japanese  torpedo  boats,  opened  fire,  with 
the  result  that  one  fishing  boat  was  sunk  and  others  damaged,  while 
two  fishermen  were  killed  and  six  injured. 

In  order  to  prevent  serious  results  from  this  incident,  France  sug- 
gested resort  to  an  international  commission  of  inquiry,  as  provided 
for  in  the  convention  for  the  pacific  settlement  of  international  dis- 
putes, adopted  by  the  Hague  Conference  of  1899.  The  suggestion  was 
accepted  by  Great  Britain  and  Russia,  and  an  agreement  was  signed 
on  November  25,  1904,*  which  invested  a commission  composed  of 
admirals  from  the  British,  Russian,  United  States,  French  and  Aus- 
trian navies  with  authority  to  find  the  facts  in  dispute  and  to  fix  re- 
sponsibility. The  commission  held  sessions  at  Paris  from  December 
22,  1904,  to  February  26,  1905,  on  which  date  its  report  was  rendered. 

The  conclusion  reached  was  that  there  were  no  torpedo  boats  either 
among  the  trawlers  or  anywhere  near  and  that  the  opening  of  fire  by 
the  Russian  Admiral  was  not  justified.  His  action  under  the  circum- 
stances was  not,  however,  such  as  to  cast  discredit  upon  his  military 
abilities  or  humanity  or  that  of  the  personnel  of  his  squadron.  Russia 
accepted  the  decision  and  paid  damages  to  the  extent  of  about  $300,000. 


iThis  case  is  also  known  as  “The  Hull  Incident.' 
^Post,  p.  410. 


404 


THE  HAGUE  COURT  REPORTS 


REPORT  OF  THE  COMMISSION 

Report  of  the  commissioners,  drawn  up  in  accordance  with  Article 

6 of  the  declaration  of  St.  Petersburg  of  November  12/25, 

1^04. — Paris,  February  26,  1905.^ 

1.  The  commissioners,  after  a minute  and  prolonged  examina- 
tion of  the  whole  of  the  facts  brought  to  their  knowledge  in  regard 
to  the  incident  submitted  to  them  for  inquiry  by  the  declaration  of 
St.  Petersburg  of  the  12th  (25th)  November,  1904,^  have  proceeded 
to  make,  in  this  report,  an  analysis  of  these  facts  in  their  logical 
sequence. 

By  making  known  the  prevailing  opinion  of  the  commission  on 
each  important  or  decisive  point  of  this  summary,  they  consider  that 
they  have  made  sufficiently  clear  the  causes  and  the  consequences 
of  the  incident  in  question,  as  well  as  the  deductions  which  are  to 
be  drawn  from  them  with  regard  to  the  question  of  responsibility. 

2.  The  second  Russian  squadron  of  the  Pacific  fleet,  under  the 
command-in-chief  of  Vice-Admiral  Aide-de-camp  General  Rojdest- 
vensky,  anchored  on  the  7th  (20th)  October,  1904,  off  Cape  Skagen, 
with  the  purpose  of  coaling  before  continuing  its  voyage  to  the 
Far  East. 

It  appears,  from  the  depositions  made,  that,  from  the  time  of 
the  departure  of  the  squadron  from  the  roadstead  of  Reval,  Ad- 
miral Rojdestvensky  had  had  the  vessels  under  his  charge  take 
minute  precautions  in  order  to  be  fully  prepared  for  a night  attack 
by  torpedo  boats,  either  at  sea  or  at  anchor. 

These  precautions  seemed  to  be  justified  by  the  numerous  reports 
of  the  agents  of  the  Imperial  Government  regarding  possible  hostile 
attacks,  which  in  all  likelihood  would  take  the  form  of  torpedo 
boat  attacks. 

Moreover,  during  his  stay  at  Skagen,  Admiral  Rojdestvensky  had 
been  warned  of  the  presence  of  suspect  vessels  on  the  coast  of  Nor- 
way. He  had  learned,  also,  from  the  commander  of  the  transport 
Bakan  coming  from  the  north,  that  he  had  seen  on  the  previous 
night  four  torpedo  boats,  carrying  a single  light  only,  and  that 
at  the  masthead. 

^American  Journal  of  International  Law,  vol.  2,  p.  931.  For  the  original 
French  text,  see  Appendix,  p.  609. 

^Post,  p.  410. 


THE  NORTH  SEA  OR  DOGGER  BANK  CASE 


405 


This  news  made  the  Admiral  decide  to  start  twenty-four  hours 
earlier. 

3.  Consequently,  each  of  the  six  distinct  divisions  of  the  fleet 
got  under  way,  separately  and  in  turn,  and  reached  the  North  Sea 
independently,  in  the  order  indicated  in  Admiral  Rojdestvensky’s 
report;  that  flag-officer  commanding  in  person  the  last  division, 
formed  by  the  four  new  battleships  Prince  Souvoroff,  Emperor 
Alexander  III,  Borodino,  Orel,  and  the  transport  Anadyr. 

This  division  left  Skagen  on  the  7th  (20th)  October  at  10  o’clock 
in  the  evening. 

A speed  of  twelve  knots  was  ordered  for  the  first  two  divisions, 
and  of  ten  knots  for  the  following  divisions. 

4.  Between  1 :30  and  4:15  on  the  afternoon  of  the  next  day,  the 
8th  (21st)  October,  all  the  divisions  of  the  squadron  passed  in  turn 
the  English  steamer  Zero,  whose  captain  examined  the  different 
units  so  attentively  that  they  could  be  recognized  from  his  descrip- 
tion of  them. 

The  results  of  his  observations  are,  moreover,  in  general  agree- 
ment with  the  statements  in  Admiral  Rojdestvensky’s  report. 

5.  The  last  vessel  to  pass  the  Zero  was,  according  to  his  descrip- 
tion of  her,  the  Kamchatka. 

This  transport,  which  originally  was  in  a division  with  the  Dmitri 
Donskoi  and  the  Aurora,  was,  therefore,  left  behind  and  isolated 
about  ten  miles  to  the  rear  of  the  squadron.  She  had  been  obliged 
to  slaken  speed  in  consequence  of  damage  to  her  engines. 

This  accidental  delay  was,  perhaps,  incidentally  the  cause  of  the 
events  which  followed. 

6.  Toward  8 o’clock  in  the  evening  this  transport  did,  in  fact, 
meet  the  Swedish  vessel  Aldebaran  and  other  unknown  vessels  and 
open  fire  on  them,  doubtless  in  consequence  of  the  anxiety  due  to 
the  circumstances  of  her  momentary  isolation,  her  damaged  engines, 
and  her  poor  fighting  ability. 

However  this  may  be,  the  commander  of  the  Kamchatka,  at  8 :45 
o’clock,  sent  a message  by  wireless  telegraphy  to  his  commander-in- 
chief regarding  this  encounter,  stating  that  he  was  “attacked  on 
all  sides  by  torpedo  boats.” 

7.  In  order  to  understand  the  effect  which  this  news  had  on 
Admiral  Rojdestvensky’s  subsequent  decisions,  it  must  be  remem- 


406 


THE  HAGUE  COURT  REPORTS 


bered  that,  in  his  opinion,  the  attacking  torpedo  boats,  of  whose 
presence  fifty  miles  to  the  rear  of  the  division  which  he  commanded, 
he  was  thus,  rightly  or  wrongly,  informed,  might  overtake  and  at- 
tack him  about  1 o’clock  in  the  morning. 

This  information  led  Admiral  Rojdestvensky  to  signal  to  his 
ships  about  10  o’clock  in  the  evening  to  redouble  their  vigilance 
and  look  out  for  an  attack  by  torpedo  boats. 

8.  On  board  the  Souvoroff  the  admiral  deemed  it  essential  that 
one  of  the  two  superior  officers  of  his  staff  should  be  on  watch  on 
the  captain’s  bridge  during  the  night  in  order  to  observe,  in  his 
place,  the  progress  of  the  squadron  and  to  warn  him  at  once  if  any 
incident  occurred. 

On  board  all  the  ships,  moreover,  the  Admiral’s  standing  orders 
to  the  officer  of  the  watch  were  to  open  fire  in  case  of  an  evident 
and  imminent  attack  by  torpedo  boats. 

If  the  attack  were  from  the  front  he  should  open  fire  on  his  own 
initiative,  and,  in  the  contrary  case,  which  would  be  much  less 
pressing,  he  should  refer  to  his  commanding  officer. 

With  regard  to  these  orders,  the  majority  of  the  commissioners 
consider  that  they  were  in  no  way  excessive  in  time  of  war,  and 
particularly  in  the  circumstances,  which  Admiral  Rojdestvensky 
had  every  reason  to  consider  very  alarming,  seeing  that  it  was  im- 
possible for  him  to  verify  the  accuracy  of  the  warnings  that  he  had 
received  from  the  agents  of  his  Government. 

9.  Toward  1 o’clock  in  the  morning  of  the  9th  (22d)  October, 
1904,  the  night  was  rather  dark,  a slight,  low  fog  partly  clouding 
the  air.  The  moon  only  showed  intermittently  between  the  clouds. 
A moderate  wind  blew  from  the  southeast,  raising  a long  swell, 
which  gave  the  ships  a roll  of  5°  on  each  side. 

The  course  followed  by  the  squadron  toward  the  southwest  would 
have  taken  the  last  two  divisions,  as  the  event  proved,  close  past 
the  usual  fishing  ground'  of  the  fleet  of  Hull  trawlers,  which  was 
composed  of  some  thirty  of  these  small  steamboats,  and  was  spread 
over  an  area  of  several  miles. 

It  appears  from  the  concordant  testimony  of  the  British  witnesses 
that  all  these  boats  carried  their  proper  lights,  and  were  trawling 
in  accordance  with  their  usual  rules,  under  the  direction  of  their 


^Dogger  Bank. 


THE  NORTH  SEA  OR  DOGGER  BANK  CASE 


407 


“admiral,”  and  in  obedience  to  the  signals  given  by  the  conventional 
rockets. 

10.  Judging  from  the  communications  received  by  wireless  tele- 
graphy, the  divisions  which  preceded  that  of  Admiral  Rojdestven- 
sky  across  these  waters  had  signaled  nothing  unusual. 

It  became  known  afterward,  in  particular,  that  Admiral  Folker- 
sam,  having  been  led  to  pass  round  the  fishing  fleet  on  the  north, 
threw  his  electric  searchlight  on  the  nearest  trawlers  at  close  quar- 
ters, and,  having  seen  them  to  be  harmless  vessels,  quietly  continued 
his  voyage. 

11.  A short  time  afterwards  the  last  division  of  the  squadron, 
led  by  the  Souvoroff  flying  Admiral  Rojdestvensky’s  flag,  arrived 
in  its  turn  close  to  the  spot  where  the  trawlers  were  fishing. 

The  direction  in  which  this  division  was  sailing  led  it  nearly 
toward  the  main  body  of  the  fleet  of  trawlers,  round  which  and  to 
the  south  of  which  it  would  therefore  be  obliged  to  sail,  when  the 
attention  of  the  officers  of  the  watch  on  the  bridges  of  the  Souvorojf 
was  attracted  by  a green  rocket,  which  put  them  on  their  guard. 
This  rocket,  sent  up  by  the  “admiral”  of  the  fishing  fleet,  indicated 
in  reality,  according  to  regulation,  that  the  trawlers  were  to  trawl 
on  the  starboard  tack. 

Almost  immediately  after  this  first  alarm,  and  as  shown  by  the 
evidence,  the  lookout  men,  who,  from  the  bridges  of  the  Souvoroff, 
were  scanning  the  horizon  with  their  night  glasses,  discovered  “on 
the  crest  of  the  waves  on  the  starboard  bow,  at  an  approximate  dis- 
tance of  eighteen  to  twenty  cables,”  a vessel  which  aroused  their 
suspicions  because  they  saw  no  light,  and  because  she  appeared  to  be 
bearing  down  upon  them. 

When  the  suspicious-looking  vessel  was  shown  up  by  the  search- 
light, the  lookout  men  thought  they  recognized  a torpedo  boat  pro- 
ceeding at  great  speed. 

It  was  on  account  of  these  appearances  that  Admiral  Rojdest- 
vensky  ordered  fire  to  be  opened  on  this  unknown  vessel. 

The  majority  of  the  commissioners  express  the  opinion,  on  this 
subject,  that  the  responsibility  for  this  action  and  the  results  of  the 
fire  to  which  the  fishing  fleet  was  exposed  are  to  be  attributed  to 
Admiral  Rojdestvensky. 

12.  Almost  immediately  after  fire  was  opened  to  starboard,  the 


408 


THE  HAGUE  COURT  REPORTS 


Souvoroff  caught  sight  of  a little  boat  on  her  bow  barring  the  way, 
and  was  obliged  to  turn  sharply  to  the  left  to  avoid  running  it 
down.  This  boat,  however,  on  being  lit  up  by  the  searchlight,  was 
seen  to  be  a trawler. 

To  prevent  the  fire  of  the  ships  being  directed  against  this  harm- 
less vessel,  the  searchlight  was  immediately  thrown  up  at  an  angle 
of  45°. 

The  admiral  then  made  the  signal  to  the  squadron  “not  to  fire  on 
the  trawlers.” 

But  at  the  same  time  that  the  searchlight  had  lit  up  this  fishing 
vessel,  according  to  the  evidence  of  witnesses,  the  lookout  men  on 
board  the  Souvoroff  perceived  to  port  another  vessel,  which  ap-  ^ 
p>eared  suspicious  from  the  fact  of  its  presenting  the  same  features 
as  were  presented  by  the  object  of  their  fire  to  starboard. 

Fire  was  immediately  opened  on  this  second  object,  and  was, 
therefore,  being  kept  up  on  both  sides  of  the  ship,  the  line  of  ships 
having  resumed  their  original  course  by  a correcting  movement 
without  changing  speed. 

13.  According  to  the  standing  orders  of  the  fleet,  the  Admiral 
indicated  the  objects  against  which  the  fire  should  be  directed  by 
throwing  his  searchlight  upon  them;  but  as  each  vessel  swept  the 
horizon  in  every  direction  with  her  own  searchlights  to  avoid  being 
taken  by  surprise,  it  was  difficult  to  prevent  confusion. 

The  fire,  which  lasted  from  ten  to  twelve  minutes,  caused  great 
loss  to  the  trawlers.  Two  men  were  killed  and  six  others  wounded ; 
the  Crane  sank;  the  Snipe,  the  Mino,  the  Moulmcin,  the  Gull,  and 
the  Majestic  were  more  or  less  damaged. 

On  the  other  hand,  the  cruiser  Aurora  was  hit  by  several  shots. 

The  majority  of  the  commissioners  observe  that  they  have  not 
sufficiently  precise  details  to  determine  what  was  the  object  fired 
on  by  the  vessels;  but  the  commissioners  recognize  unanimously 
that  the  vessels  of  the  fishing  fleet  did  not  commit  any  hostile  act ; \ 
and,  the  majority  of  the  commissioners  being  of  opinion  that  there 
were  no  torpedo  boats  either  among  the  trawlers  nor  anywhere 
near,  the  opening  of  the  fire  by  Admiral  Rojdestvensky  was  not 
justifiable. 

The  Russian  commissioner,  not  considering  himself  justified  in 
sharing  this  opinion,  expresses  the  conviction  that  it  was  precisely 


THE  NORTH  SEA  OR  DOGGER  BANK  CASE 


409 


the  suspicious-looking  vessels  approaching  the  squadron  with  hostile 
intent  which  provoked  the  fire. 

14.  With  reference  to  the  real  objectives  of  this  nocturnal  firing, 
the  fact  that  the  Aurora  was  hit  by  several  47-millimeter  and  75- 
millimeter  shells  would  lead  to  the  supposition  that  this  cruiser,  and 
perhaps  even  some  other  Russian  vessels,  left  behind  on  the  route 
followed  by  the  Souvoroff  unknown  to  that  vessel,  might  have  pro- 
voked and  been  the  object  of  the  first  few  shots. 

This  mistake  might  have  been  caused  by  the  fact  that  this  vessel, 
seen  from  astern,  was  apparently  showing  no  light,  and  by  a noc- 
turnal optical  illusion  which  deceived  the  lookout  on  the  flagship. 

On  this  head  the  commissioners  find  that  they  are  without  im- 
portant information  which  would  enable  them  to  determine  the-^ 
reasons  why  the  fire  on  the  port  side  was  continued. 

According  to  their  conjecture,  certain  distant  trawlers  might  have 
been  mistaken  for  the  original  objectives,  and  thus  fired  upon  di- 
rectly. Others,  on  the  contrary,  might  have  been  struck  by  a fire 
directed  against  more  distant  objectives. 

These  considerations,  moreover,  are  not  in  contradiction  with 
the  impressions  formed  by  certain  of  the  trawlers,  who,  finding  that 
they  were  struck  by  projectiles  and  remained  under  the  rays  of  the 
searchlights,  might  believe  that  they  were  the  object  of  a direct  fire. 

15.  The  time  during  which  the  firing  lasted  on  the  starboard  side, 
even  taking  the  point  of  view  of  the  Russian  version,  seems  to  the 
majority  of  the  commissioners  to  have  been  longer  than  was  neces- 
sary. 

But  that  majority  considers  that,  as  has  already  been  said,  they 
have  not  before  them  sufficient  data  as  to  why  the  fire  on  the  port- 
side  was  continued. 

In  any  case,  the  commissioners  take  pleasure  in  recognizing, 
unanimously,  that  Admiral  Rojdestvensky  personally  did  everything 
he  could,  from  beginning  to  end  of  the  incident,  to  prevent  trawlers, 
recognized  as  such,  from  being  fired  upon  by  the  squadron. 

16.  Finally,  the  Dmitri  Donskoi  having  signaled  her  number,  the 
Admiral  decided  to  give  the  general  signal  for  “cease  firing.”  The 
line  of  his  ships  then  continued  on  their  way,  and  disappeared  to 
the  southwest  without  having  stopped. 

On  this  point  the  commissioners  recognize,  unanimously,  that 


410 


THE  HAGUE  COURT  REPORTS 


after  the  circumstances  which  preceded  the  incident  and  those  which 
produced  it,  there  was,  at  the  cessation  of  fire,  sufficient  uncer- 
tainty with  regard  to  the  danger  to  which  the  division  of  vessels 
was  exposed  to  induce  the  Admiral  to  proceed  on  his  way. 

Nevertheless,  the  majority  of  the  commissioners  regret  that  Ad- 
miral Rojdestvensky,  in  passing  the  Straits  of  Dover,  did  not  take 
care  to  inform  the  authorities  of  the  neighboring  maritime  Powers, 
that,  as  he  had  been  led  to  open  fire  near  a group  of  trawlers,  these 
boats,  of  unknown  nationality,  stood  in  need  of  assistance. 

17.  In  concluding  this  report,  the  commissioners  declare  that 
their  findings,  which  are  therein  formulated,  are  not,  in  their  opin- 
ion, of  a nature  to  cast  any  discredit  upon  the  military  qualities  or 
the  humanity  of  Admiral  Rojdestvensky,  or  of  the  personnel  of  his 
squadron. 

Spaun 

Fournier 

Doubassoff 

Lewis  Beaumont 

Charles  PIenry  Davis 


AGREEMENT  FOR  INQUIRY 

Declaration  between  Great  Britain  and  Rtissia,  relating  to  the  consti- 
tution of  an  international  commission  of  inquiry  on  the  subject  of 
the  North  Sea  incident. — Signed  at  St.  Petersburg,  November  I2j2^, 
1904} 

His  Britannic  Majesty’s  Government  and  the  Imperial  Russian  Gov- 
ernment having  agreed  to  entrust  to  an  international  commission  of 
inquiry,  assembled  conformably  to  Articles  9 to  14  of  the  Hague  Con- 
vention of  the  29th  (17th)  July,  1899,  for  the  pacific  settlement  of 
international  disputes,  the  task  of  elucidating  by  means  of  an  impartial 
and  conscientious  investigation  the  questions  of  fact  connected  with 
the  incident  which  occurred  during  the  night  of  the  21st-22d  (8th-9th) 
October,  1904,  in  the  North  Sea  (on  which  occasion  the  firing  of  the 
guns  of  the  Russian  fleet  caused  the  loss  of  a boat  and  the  death  of 
two  persons  belonging  to  a British  fishing  fleet,  as  well  as  damages  to 

^American  Journal  of  International  Law,  vol.  2,  p.  929.  For  the  original 
French  text,  see  Appendix,  p.  614. 


THE  NORTH  SEA  OR  DOGGER  BANK  CASE 


411 


Other  boats  of  that  fleet  and  injuries  to  the  crews  of  some  of  those 
boats),  the  undersigned,  being  duly  authorized  thereto,  have  agreed 
upon  the  following  provisions : 

Article  1 

The  international  commission  of  inquiry  shall  be  composed  of  five 
members  (commissioners),  of  whom  two  shall  be  officers  of  high  rank 
in  the  British  and  Imperial  Russian  navies,  respectively.  The  Govern- 
ments of  France  and  of  the  United  States  of  America  shall  each  be  re- 
quested to  select  one  of  their  naval  officers  of  high  rank  as  a member 
of  the  commission.  The  fifth  member  shall  be  chosen  by  agreement 
between  the  four  members  above-mentioned. 

In  the  event  of  no  agreement  being  arrived  at  between  the  four  com- 
missioners as  to  the  selection  of  the  fifth  member  of  the  commission. 
His  Imperial  and  Royal  Majesty  the  Emperor  of  Austria,  King  of 
Hungary,  shall  be  invited  to  select  him. 

Each  of  the  two  high  contracting  parties  shall  likewise  appoint  a 
legal  assessor  to  advise  the  commissioners,  and  an  agent  officially  en- 
powered  to  take  part  in  the  labors  of  the  commission. 

Article  2 

The  commission  shall  inquire  into  and  report  on  all  the  circum- 
stances relative  to  the  North  Sea  incident,  and  particularly  on  the 
question  as  to  where  the  responsibility  lies  and  the  degree  of  blame 
attaching  to  the  subjects  of  the  two  high  contracting  Parties  or  to  the 
subjects  of  other  countries  in  the  event  of  their  responsibility  being 
established  by  the  inquiry. 

Article  3 

The  commission  shall  settle  the  details  of  the  procedure  which  it  will 
follow  for  the  purpose  of  accomplishing  the  task  with  which  it  has 
been  entrusted. 

Article  4 

The  two  high  contracting  Parties  undertake  to  supply  the  interna- 
tional commission  of  inquiry,  to  the  greatest  possible  extent,  with  all 
the  means  and  facilities  necessary  to  enable  it  to  thoroughly  investi- 
gate and  correctly  estimate  the  matters  in  dispute. 

Article  5 

The  commission  shall  assemble  at  Paris  as  soon  as  possible  after 
the  signature  of  this  agreement. 


412 


THE  HAGUE  COURT  REPORTS 


Article  6 

The  commission  shall  present  its  report  to  the  two  high  contracting 
Parties  signed  by  all  the  members  of  the  commission. 

Article  7 

The  commission  shall  arrive  at  all  its  decisions  by  a majority  vote 
of  the  five  commissioners. 

Article  8 

The  two  high  contracting  Parties  undertake  to  bear,  each  on  its 
part,  the  expenses  of  the  inquiry  made  by  it  previously  to  the  as- 
sembly of  the  commission.  The  expenses  incurred  by  the  international 
commission,  after  the  date  of  its  assembly,  in  organizing  its  staff  and 
in  conducting  the  investigations  which  it  will  have  to  make,  shall  be 
shared  equally  by  the  two  Governments. 

In  witness  whereof  the  undersigned  have  signed  the  present  declara- 
tion and  have  affixed  their  seals  thereto. 

Done  in  duplicate  at  St.  Petersburg,  November  25  (12),  1904. 

(Signed)  Charles  Hardinge 
(Signed)  Count  Lamsdorff 

ADDITIONAL  DOCUMENT 

Supplementary  protocol  to  the  Declaration  between  Great  Britain  and 

Russia  relative  to  the  constitution  of  an  international  commission 

of  inquiry  on  the  subject  of  the  North  Sea  incident. — Signed  at 

St.  Petersburg,  November  12/2^,  igoq.^ 

The  undersigned  have  met  to-day  in  the  building  of  the  Imperial 
Ministry  of  Foreign  Affairs  to  proceed  to  the  signature  of  the  declara- 
tion between  the  Government  of  His  Britannic  Majesty  and  the  Im- 
perial Russian  Government,  concerning  the  institution  of  a commission 
of  inquiry  on  the  subject  of  the  North  Sea  incident. 

After  the  reading  of  the  respective  instruments,  found  in  good  and 
due  form,  the  signature  of  the  said  declaration  took  place  in  the  usual 
manner. 

In  faith  of  which  the  undersigned  have  drawn  up  the  present  pro- 
tocol and  attached  the  seals  of  their  arms. 

Done  in  duplicate  at  St.  Petersburg,  November  12  (25),  1904. 

(L.  S.)  Charles  Hardinge 
(L.  S.)  Count  Lamsdorff 


^Translation.  For  the  original  French  text,  see  Appendix,  p.  615. 


THE  TAVIGNANO,  CAMOUNA  AND 
GAULOIS  CASES 

between 

FRANCE  and  ITALY 
Findings  Reported  May  2,  1913 

Syllabus 

On  January  25,  1912,  during  the  Turco-Italian  war,  the  French  mail 
steamer  Tavignano  was  seized  by  the  Italian  torpedo  boat  Fulmine 
off  the  coast  of  Tunis  and  conducted  to  Tripoli  under  suspicion  of 
having  on  board  contraband  of  war.  The  suspicion  proved  to  be  un- 
warranted and  the  vessel  was  released  on  the  following  day. 

On  the  same  date,  in  the  same  waters,  the  two  Tunisian  mahones, 
Camouna  and  Gaulois,  were  fired  upon  by  the  Italian  torpedo  boat 
Canopo. 

The  French  Government  claimed  indemnity  for  these  acts  from  the 
Italian  Government  on  the  ground  that  the  vessels  when  encountered 
were  within  the  territorial  waters  of  Tunis  and  were  not,  according  to 
international  law,  subject  to  either  attack  or  capture.  On  the  other 
hand,  Italy  maintained  that  the  acts  complained  of  took  place  on  the 
high  seas  and  that  no  rule  of  international  law  had  been  violated. 

The  cases  were  submitted  to  a commission  of  inquiry  by  agreements 
signed  April  15  and  May  20,  1912.^  The  commission  made  its  report 
on  July  23d,  but  as  no  definite  conclusion  was  reached  a compromis 
was  signed  on  November  8th*  submitting  the  case  for  arbitration  to  the 
tribunal  in  charge  of  the  Carthage  and  Manouba  cases.®  No  decision 
was  rendered  by  the  tribunal,  the  matter  being  finally  settled  out  of 
court  by  a special  agreement  dated  May  2,  1913,*  according  to  the 
terms  of  which  Italy  agreed  to  pay  an  indemnity  to  the  French  Gov- 
ernment of  five  thousand  francs  for  distribution  among  the  various 
individuals  who  had  sustained  losses. 


REPORT  OF  THE  COMMISSION 

Report  of  the  commission  of  inquiry  constituted  in  virtue  of  the 
agreement  for  inquiry  signed  at  Rome  between  France  and  Italy, 
May  20,  igi2. — Malte,  July  2^,  igi2j 

The  commissioners,  after  having  examined  and  compared  all 
data  gathered  both  from  the  documents  presented  by  the  tw'O  parties 

^Post,  pp.  417,  419.  ^Post,  p.  419.  ^Ante,  pp.  329,  341. 

*Post,  p.  421. 

^Translation.  For  the  original  French  text,  see  Appendix,  p.  616. 


414 


THE  HAGUE  COURT  REPORTS 


and  from  the  evidence  in  the  case ; after  having  done  the  important 
part,  which  was  the  weighing  of  all  this  evidence;  and  after  having 
taken  into  consideration  the  degree  of  uncertainty  appertaining 
thereto,  has  reached  the  following  conclusions: 


I 

The  evidence  and  documents  presented  are  not  of  a nature  to 
permit  of  determination  of  the  exact  geographical  points  where  oc- 
curred the  various  acts  which  have  been  submitted  to  inquiry,  but 
simply  of  the  zones  in  which  they  occurred,  it  being  impossible  to 
decide  upon  an  exact  point  in  the  zones. 

1.  Regarding  the  point  where  the  Tavignano  stopped. 

This  point  is  within  the  area  of  a rectilinear  quadrilateral  set  off 
by  the  following  four  apexes : 


Apex  C . . . Latitude 
Longitude 
Apex  B . . . Latitude 
Longitude 
Aj)ex  A . . . Latitude 
Longitude 
Apex  D . . . Latitude 
Longitude 


33'29'20"  North, 
8°56'40"  East  of  Paris, 
33'29T0"  North, 
8°55'10"  East  of  Paris, 
33'26'30"  North, 
8°54'40'’  East  of  Paris, 
33°26'30"  North, 
8‘56'20"  East  of  Paris, 


2.  Regarding  the  pursuit  of  the  mahones : 

A.  By  the  Fulmine. 

The  Fulmine,  setting  out  from  an  indeterminate  point  in  the  zone 
above  defined,  pursued  the  mahones,  perhaps  going  out  of  that 
zone,  in  a direction  impossible  to  determine  definitely  but  which 
was  either  southeast  or  southwest  by  south. 

The  pursued  mahones  were  located  at  the  following  points,  which 
are  the  centers  of  inexact  circles  of  half-mile  radii : 


Cawjouno.  . Latitude  33°24'10"  North, 

Longitude  9°00T5"  East  of  Paris. 

Gaulois.  . . Latitude  33°22'40"  North, 

Longitude  8°59'55"  East  of  Paris. 


THE  TAVIGNANO,  CAMOUNA  AND  GAULOIS  CASES 


415 


After  this  pursuit  the  Fulmine  returned  to  moor  near  the  Tavig- 
nano,  at  point  H,  which  the  commission  has  chosen  as  the  center  of 
an  inexact  circle  of  a half-mile  radius. 

B.  The  Canopo  cannonaded  the  Gaulois  when  that  mahone  was  at 
a point  indicated  above  and  when  it  (the  Canopo)  was  proceeding 
in  a northerly  direction  from  the  point  indicated  in  its  log-book  by 

Latitude  33°20'45"  North, 

Longitude  9°00'50"  East  of  Paris. 

which  point  the  commission  has  also  adopted  as  the  center  of  an 
inexact  circle  of  a half-mile  radius. 

The  commission,  after  its  visit  to  the  localities  and  after  verifi- 
cation in  the  waters  of  Zarzis,  decided,  in  reporting,  to  use  for  the 
hydrography,  configuration  and  nature  of  the  coast  and  neighbor- 
ing banks  the  French  Hydrographic  Service  Card  No.  4247.  The 
commission  recalls  the  fact  that  its  verification  was  the  object  of 
the  proces-verbal  of  July  15,  1912,  which  is  numbered  68. 

The  president  having  read  the  present  report  to  the  commission- 
ers, the  report  and  its  conclusions  have  been  unanimously  adopted. 

Done  at  Malte,  in  triplicate,  July  23,  1912. 

Commissioners:  Guiseppe  Genoese  Zerbi 
SOMBORN 
Segrave 


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THE  TAVIGNANO,  CAMOUNA  AND  GAULOIS  CASES  417 

AGREEMENT  FOR  INQUIRY 

Convention  of  Inquiry  in  the  “Tavignano”  “Camouna”  and  “Gaulois” 

Cases. — Signed  at  Rome,  May  20,  ipi2.^ 

The  Government  of  the  French  Republic  and  the  Royal  Italian 
Government,  equally  desirous  of  settling  the  dispute  caused  by  the 
capture  and  temporary  detention  of  the  French  mail  steamer  Tavig- 
nano, on  January  25,  1912,  by  the  Royal  Italian  naval  vessel  Fulmine, 
as  well  as  the  firing  upon  the  mahones  Camouna  and  Gaulois,  on  Jan- 
uary 25,  1912,  by  the  Italian  torpedo  boat  Canopo; 

Have  resolved,  conformably  to  Part  III  of  the  Hague  Convention 
of  October  18,  1907,  for  the  pacific  settlement  of  international  dis- 
putes, to  confide  to  an  international  commission  of  inquiry  the  task 
of  clearing  up  the  actual  circumstances  under  which  the  said  capture 
and  detention,  and  the  said  firing  took  place ; 

And  have,  to  this  end,  agreed  upon  the  following  provisions : 

Article  1 

An  international  commission  of  inquiry,  composed  as  hereinafter 
stipulated,  is  entrusted: 

I.  To  investigate,  mark  and  determine  the  exact  geographic  point 
where  occurred:  (1)  the  capture  of  the  French  mail  steamer  Tavig- 
nano by  the  Royal  Italian  naval  vessel  Fulmine,  on  January  25,  1912; 
(2)  the  pursuit  of  the  mahones  Camouna  and  Gaulois  by  the  same 
vessel  and  also  by  the  Royal  Italian  naval  vessel  Canopo,  and  the  firing 
by  the  latter  upon  the  said  mahones ; 

II.  To  determine  exactly  the  hydrography,  configuration  and  nature 
of  the  coast  and  of  the  neighboring  banks,  the  distance  between  any 
points  which  one  or  the  other  of  the  commissioners  might  deem  useful 
to  mark,  and  the  distance  from  these  points  to  those  where  the  above- 
mentioned  deeds  occurred; 

III.  To  make  a written  report  of  the  result  of  its  investigation. 

Article  2 

The  international  commission  of  inquiry  shall  be  composed  of  three 
commissioners,  of  which  two  shall  be  national  naval  officers  of  France 


^Translation.  For  the  original  French  text,  see  Appendix,  p.  617. 


418 


THE  HAGUE  COURT  REPORTS 


and  Italy,  of  a rank  at  least  equal  to  that  of  captain.  The  Government 
of  His  Britannic  Majesty  shall  be  asked  to  choose  the  third  commis- 
sioner from  among  his  naval  officers,  of  a higher  or  the  highest  rank. 
The  latter  shall  assume  the  office  of  president. 

Two  secretaries  shall  be  appointed,  one  by  the  Government  of  the 
French  Republic  and  the  other  by  the  Royal  Italian  Government,  as 
registrars  of  the  commission,  and  they  shall  assist  it  in  its  operations. 

Article  3 

The  international  commission  of  inquiry  shall  be  qualified  to  secure 
all  information,  interrogate  and  hear  all  witnesses,  to  examine  all 
papers  on  board  either  of  the  said  ships,  vessels  and  mahones,  to  pro- 
ceed, if  necessary,  with  sounding,  and,  in  general,  to  resort  to  all 
sources  of  information  calculated  to  bring  out  the  truth. 

The  two  Governments  agree  in  this  respect  to  furnish  the  commis- 
sion with  all  possible  means  and  facilities,  particularly  those  of  trans- 
portation, to  enable  it  to  accomplish  its  task. 

Article  4 

The  international  commission  of  inquiry  shall  meet  at  Malte  as  soon 
as  possible  and  shall  have  the  power  to  change  its  place  of  meeting 
conformably  to  Article  20  of  the  Hague  Convention  of  October  18, 
1907,  for  the  pacific  settlement  of  international  disputes. 

Article  5 

The  French  language  shall  be  used  by  the  international  commission 
of  inquiry;  however,  in  their  deliberations  the  commissioners  may  use 
their  respective  languages. 

Article  6 

Within  a period  not  to  exceed  fifteen  days  from  the  date  of  its  first 
meeting  the  international  commission  of  inquiry  shall  arrive  at  the 
conclusions  of  its  report  and  shall  communicate  them  to  each  of  the 
two  Governments. 

Article  7 

Each  party  shall  p>ay  its  own  expenses  and  an  equal  share  of  the 
expenses  of  the  commission. 

Article  8 

All  points  not  covered  by  the  present  convention  of  inquiry,  espe- 


THE  TAVIGNANO,  CAMOUNA  AND  GAULOIS  CASES 


419 


cially  those  relating  to  the  procedure  of  inquiry,  shall  be  regulated  by 
the  provisions  of  the  Hague  Convention  of  October  18,  1907,  for  the 
pacific  settlement  of  international  disputes. 

Done  in  duplicate,  at  Rome,  May  20,  1912. 

Signed:  Camille  Barrere 

Di  San  Giuliano 

ADDITIONAL  DOCUMENTS 

Agreement  between  France  and  Italy  relative  to  the  “Tavignano," 

“Camouna”  and  “Gaulois”  Cases. — Signed  at  Rome,  April  15,  igi2.^ 

The  French  and  Italian  Governments  have  decided  to  submit  to  an 
international  commission  of  inquiry  the  questions  of  fact  raised : 

1.  On  the  subject  of  the  seizure  of  the  French  steamer  Tavignano 
by  the  Italian  torpedo  boat  Fulmine,  on  January  25,  1912,  in  the  waters 
of  Ras-Zira; 

2.  On  the  subject  of  the  cannon  shots  fired  by  the  torpedo  boat 
Canopo,  on  the  same  day  and  in  the  same  waters,  upon  the  two  Tuni- 
sian mahones  Camouna  and  Caulois. 

After  the  said  commission  shall  have  terminated  its  investigation, 
the  result  shall  be  transmitted,  if  it  is  deemed  necessary,  to  the  arbitral 
tribunal  charged  with  the  settling  of  the  Carthage  and  Manouba  af- 
fairs, in  order  that  it  may  decide  the  question  of  law,  fix  the  responsi- 
bility and  determine  the  moral  and  material  reparation  which  are  due. 

Rome,  April  15,  1912. 

Signed:  Camille  Barrere 

DI  San  Giuliano 


Compromis  of  arbitration  relative  to  the  questions  raised  on  the  sub- 
ject of  the  seizure  of  the  French  steamer  “Tavignano”  and  on  the 
subject  of  the  cannon  shots  fired  by  an  Italian  torpedo  boat  upon 
two  Tunisian  mahones. — Signed  at  Paris,  November  8,  igi2.^ 

The  Government  of  the  French  Republic  and  the  Royal  Italian 
Government,  having  agreed,  on  April  15,  1912:® 

1.  To  submit  to  an  international  commission  of  inquiry  the  questions 
raised  on  the  subject  of  the  seizure  of  the  French  steamer  Tavignano 

^Translation.  For  the  original  French  text,  see  Appendix,  p.  621. 

2/4.  This  controversy  was  settled  out  of  court  by  a special  agreement,  see 
post,  p.  421. 

®See  supra. 


420 


THE  HAGUE  COURT  REPORTS 


by  the  Italian  torpedo  boat  Fulmine  on  January  25,  1912,  in  the  waters 
of  Raz-Zira  and  on  the  subject  of  the  cannon  shots  fired  by  the  Italian 
torpedo  boat  Canopo  on  the  same  day  and  in  the  same  waters,  upon 
the  two  Tunisian  mahones  Camonna  and  Gaulois; 

2.  To  transmit,  if  necessary,  the  result  of  the  inquiry  to  the  arbitral 
tribunal  charged  with  the  settling  of  the  Carthage  and  Manouba  af- 
fairs, in  order  that  it  may  decide  the  question  of  law,  fix  the  responsi- 
bility and  determine  the  moral  and  material  reparation  which  are  due ; 

Having  taken  recognition  of  the  report  presented  July  23,  1912,  by 
the  said  international  commission  of  inquiry; 

The  undersigned,  duly  authorized  for  that  purpose,  have  agreed 
upon  the  following  compromis : 

Article  1 

The  arbitral  tribunal  charged  with  the  settling  of  the  affairs  of  the 
Carthage  and  Manouba  is  also  authorized  to  pronounce  upon  the  inci- 
dents concerning  the  seizure  of  the  French  steamer  Tavignano  and  the 
cannon  shots  fired  upon  the  Tunisian  mahones,  as  well  as  to  decide  the 
questions  of  law,  fix  the  responsibility  and  determine  the  moral  and 
material  reparation  which  are  due. 

Article  2 

In  all  that  concerns  the  questions  of  fact  raised  by  the  two  incidents, 
the  arbitral  tribunal  must  make  use  of  the  report  presented  by  the 
international  commission  of  inquiry  of  July  23,  1912,  as  well  as  the 
prochs-verbaiix  of  the  said  commission. 

The  said  report  and  proces-verbaux  shall  be  printed  at  the  expense 
and  under  the  supervision  of  both  parties  and  with  the  least  possible 
delay. 

Article  3 

On  January  25,  1913,  each  party  shall  deposit  with  the  Bureau  of 
the  Permanent  Court  of  Arbitration  fifteen  copies  of  its  memorial, 
with  certified  copies  of  all  documents  and  papers  which  it  intends  to 
submit  in  the  case. 

The  Bureau  shall  guarantee  their  transmission  without  delay  to  the 
arbitrators  and  parties,  to  wit : two  copies  for  each  arbitrator ; three 
copies  for  each  party;  two  copies  shall  remain  in  the  archives  of  the 
Bureau. 


THE  TAVIGNANO,  CAMOUNA  AND  GAULOIS  CASES 


421 


On  March  1,  1913,  each  party  shall  deposit,  under  the  same  condi- 
tions as  above,  its  counter-memorial,  with  the  papers  appertaining 
thereto,  and  its  final  conclusions. 

The  tribunal  shall  meet  at  The  Hague,  in  the  second  fortnight  of 
March,  upon  the  convocation  of  its  president. 

Article  4 

For  all  points  not  covered  by  the  present  compromis,  the  stipulations 
of  the  compromis  of  March  6,  1912,^  and  of  the  agreement  of  April  4, 
1912,^  shall  be  applicable  to  the  present  litigation. 

Done  at  Paris,  November  8,  1912. 

(Signed)  L.  Renault 
(Signed)  G.  Fusinato 


Agreement  between  France  and  Italy  settling  definitively  the  “Tavig- 
nano/’  “Camouna”  and  “Gatilois”  controversy. — Signed  at  The 
Hague,  May  2, 

As  the  two  affairs  of  the  Carthage  and  the  Manouba  are  about  to  be 
settled  by  arbitral  award,  the  Government  of  the  French  Republic  and 
the  Royal  Italian  Government  consider  that  a direct  settlement  of  the 
affair  concerning  the  Tavignano  and  the  two  Tunisian  mahones  is  par- 
ticularly desirable  because  of  the  similar  nature  of  the  dispute.  The 
two  Governments  are  especially  desirous  of  taking  this  course  which 
gives  them  another  opportunity  to  show  the  spirit  of  cordial  friend- 
ship which  mutually  animates  them.  To  this  end  they  have  agreed 
that  it  will  be  equitable  to  indemnify  the  individuals  for  the  losses 
sustained  by  them.  The  Royal  Italian  Government  having  declared 
itself  willing  to  pay  the  sum  of  five  thousand  francs  for  this  purpose, 
the  Government  of  the  French  Republic  has  declared  that  it  will  accept 
the  same  and  consider  this  affair  thus  definitively  settled. 

The  undersigned  have  testified  to  the  agreement  of  their  Govern- 
ments by  the  present  act,  which  shall  have  the  force  of  law. 

Signed : L.  Renault 

G.  Fusinato 


'^Ante,  pp.  336,  351.  ^Ante,  p.  340. 

^Translation.  For  the  original  French  text,  see  Appendix,  p.  623. 


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TABULAR  STATEMENT 


OF 

AWARDS  AND  REPORTS 

OF  THE 

HAGUE  TRIBUNALS 

AND 


COMMISSIONS  OE  INQUIRY 


CASES  DECIDED  BY 


Case 

Parties 

The  Pious  Fund  Case 

Mexico  vs.  United  States 

The  Venezuelan  Preferential  Case 
The  Japanese  House  Tax  Case 
The  Muscat  Dhows  Case 

Germany,  Great  Britain,  Italy  vs.  Venezuela  et  al. 
France,  Germany,  Great  Britain  vs.  Japan 
France  vs.  Great  Britain 

The  Casablanca  Case 

France  vs.  Germany 

The  Grisbadama  Case 

The  North  Atlantic  Coast  Fisheries  Case 

Norway  vs.  Sweden 

Great  Britain  vs.  United  States 

The  Orinoco  Steamship  Company  Case 
The  Savarkar  Case 

United  States  vs.  Venezuela 
France  vs.  Great  Britain 

The  Canevaro  Case 

The  Russian  Indemnity  Case 

Italy  vs.  Peru 
Russia  vs.  Turkey 

The  Carthage  Case  ) 
The  Manouba  Case  j 

France  vs.  Italy 

The  Island  of  Timor  Case 

Netherlands  vs.  Portugal 

CASES  REFERRED  TO 


Case 

Parties 

The  North  Sea  or  Dogger  Bank  Case 

Great  Britain  vs.  Russia 

The  Tavignano,  Camouna  and  Gaulois 
Cases* 

France  vs.  Italy 

^The  name  of  the  president  of  the  tribunal  appears  first  in  this  list.  *Not  a member  of  the  Perma- 
in  charge  of  the  Carthage  and  Manouba  cases,  but  they  were  finally  settled  out  of  court  by  a special  agree- 


424 


THE  HAGUE  TRIBUNALS  OF  ARBITRATION 


Date  of  Agreement 

Date  of  Award 

Arbitrators^ 

May  22,  1902 

October  14,  1902 

Matzen,  Sir  Edward  Fry,  Martens,  Asser,  de 
Savornin  Lohman 

May  7,  1903 

February  22,  1904 

Mourawieff,  Lammasch,  Martens 

August  28,  1902 

May  22,  1905 

Gram,  Renault,  Motono 

October  13,  1904 

August  8,  1905 

Lammasch,  Melville  W.  Fuller,  de  Savornin  Loh- 

November  10,  1908 

May  22,  1909 

man 

Hammarskjold,  Sir  Edward  Fry,  Fusinato, 
Kriege,  Renault 

March  14,  1908 

October  23,  1909 

Loeff,*  Beichmann,^’  Hammarskjold 

January  27,  1909 

September  7,  1910 

Lammasch,  de  Savornin  Lohman,  George  Gray, 
Sir  Charles  Fitzpatrick,  Drago 

February  13,  1909 

October  25,  1910 

Lammasch,  Beernaert,  de  Quesada 

October  25,  1910 

February  24,  1911 

Beernaert,  Renault,  Lord  Desart,  Gram,  de 
Savornin  Lohman 

April  25,  1910 

May  3,  1912 

Renault,  Fusinato,  Calderon 

July  22/August  4,  1910 

November  11,  1912 

Lardy,  Baron  de  Taube,  Mandelstam,*  Herante 
Abro  Bey,*  Ahmed  Rechid  Bey* 

March  6,  1912 

May  6,  1913 

Hammarskjold,  Renault,  Fusinato,  Kriege,  Baron 
de  Taube 

April  3,  1913 

June  25,  1914 

Lardy 

HAGUE  COMMISSIONS  OF  INQUIRY 

Date  of  Agreement 

Date  of  Report 

Commissioners 

November  12/25,  1904 
April  25,  1912 

February  26,  1905 
July  23,  1912 

Admirals,  Spaum,  Doubassoff,  Beaumont,  Four- 
nier, Davis 

Captains  James  Segrave,  Sombron,  Zerbi 

nent  Court.  ®These  cases  were  also  referred,  by  compromis  of  November  8,  1912,  to  the  Hague  tribunal 
ment  of  May  2,  1913. 


425 


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APPENDIX 


THE  PIOUS  FUND  CASE 


Award  of  the  Tribunal,  October  14, 

Le  Tribunal  d’ Arbitrage,  constitue  en  vertu  du  Traite  conclu  a 
Washington,  le  22  mai  1902,  entre  les  Etats-Unis  d’Amerique  et  les 
Etats-Unis  Mexicains; 

Attendu  que,  par  un  compromis,  redige  sous  forme  de  Protocole, 
entre  les  Etats-Unis  d’Amerique  et  les  Etats-Unis  Mexicains,  signe  a 
Washington  le  22  mai  1902,  il  a ete  convenu  et  regie  que  le  differend, 
qui  a surgi  entre  les  Etats-Unis  d’Amerique  et  les  Etats-Unis  Mexicains 
au  sujet  du  “Ponds  Pieux  des  Calif ornies”  dont  les  annuites  etaient 
reclamees  par  les  Etats-Unis  d’Amerique,  au  profit  de  I’Archeveque 
de  San  Francisco  et  de  I’Eveque  de  Monterey,  au  Gouvernement  de  la 
Republique  Mexicaine,  serait  soumis  a un  Tribunal  d’Arbitrage,  cons- 
titue sur  les  bases  de  la  Convention  pour  le  reglement  pacifique  des 
condits  internationaux,  signee  a La  Haye  le  29  juillet  1899,  qui  serait 
compose  de  la  maniere  suivante,  savoir : 

Le  President  des  Etats-Unis  d’Amerique  designerait  deux  Arbitres 
non-nationaux  et  le  President  des  Etats-Unis  Mexicains  egalement 
deux  Arbitres  non-nationaux.  Ces  quatre  Arbitres  devraient  se  reunir 
le  1 septembre  1902  a La  Haye  afin  de  nommer  le  Surarbitre  qui,  en 
meme  temps,  serait  de  droit  le  President  du  Tribunal  d’Arbitrage. 

Attendu  que  le  President  des  Etats-Unis  d’Amerique  a nomme 
comme  Arbitres : 

Le  tres  honorable  Sir  Edward  Fry,  Docteur  en  droit,  autrefois 
siegeant  a la  Cour  d’Appel,  Membre  du  Conseil  Prive  de  Sa  Majeste 
Britannique,  Membre  de  la  Cour  permanente  d’Arbitrage  et 

Son  Excellence  Monsieur  de  Martens,  Docteur  en  Droit,  Conseiller 
Prive,  Membre  du  Conseil  du  Ministere  Imperial  des  affaires  Etran- 
geres  de  Russie,  Membre  de  I’lnstitut  de  France,  Membre  de  la  Cour 
permanente  d’Arbitrage ; 

Attendu  que  le  President  des  Etats-Unis  Mexicains  a nomme  comme 
Arbitres : 

Monsieur  T.  M.  C.  Asser,  Docteur  en  Droit,  Membre  du  Conseil 
d’Etat  des  Pays-Bas,  ancien  Professeur  a I’Universite  d’Amsterdam, 
Membre  de  la  Cour  permanente  d’Arbitrage  et 

Monsieur  le  Jonkheer  A.  F.  de  Savornin  Lohman,  Docteur  en  Droit, 
ancien  Ministre  de  I’lnterieur  des  Pays-Bas,  ancien  Professeur  a 
rUniversite  fibre  d’Amsterdam,  Membre  de  la  Seconde  Chambre  des 
Etats-Generaux,  Membre  de  la  Court  permanente  d’Arbitrage; 

Lesquels  Arbitres,  dans  leur  reunion  du  1 septembre  1902,  ont  elu, 
conformement  aux  Articles  XXXH-XXXIV  de  la  Convention  de  La 


^Official  report,  p 107. 


430 


ORIGINAL  TEXTS 


Haye  du  29  juillet  1899,  comme  Surarbitre  et  President  de  droit  du 
Tribunal  d’Arbitrage: 

Monsieur  Henning  Matzen,  Docteur  en  Droit,  Professeur  a I’Uni- 
versite  de  Copenhague,  Conseiller  extraordinaire  a la  Cour  Supreme, 
President  du  Landsthing,  Membre  de  la  Cour  permanente  d’Arbitrage. 

Et  attendu,  qu’en  vertu  du  Protocole  de  Washington  du  22  mai 
1902,  les  susnommes  Arbitres,  reunis  en  Tribunal  d’Arbitrage,  de- 
vraient  decider:. 

1°.  Si  la  dite  reclamation  des  Etats-Unis  d’Amerique  au  profit  de 
I’Archeveque  de  San  Francisco  et  de  FEveque  de  Monterey  est  regie 
par  le  principe  de  la  res  judicata,  en  vertu  de  la  sentence  arbitral  du  1 1 
novembre  1875,  prononcee  par  Sir  Edward  Thornton,  en  qualite  de 
Surarbitre ; 

2°.  Si  non,  si  la  dite  reclamation  est  juste,  avec  pouvoir  de  rendre  tel 
jugement  qui  leur  semblera  juste  et  equitable; 

Attendu  que  les  susnommes  Arbitres,  ayant  examine  avec  impar- 
tialite  et  soin  tons  les  documents  et  actes,  presentes  au  Tribunal 
d’Arbitrage  par  les  Agents  des  Etats-Unis  d’Amerique  et  des  Etats- 
Unis  Mexicains,  et  ayant  entendu  avec  la  plus  grande  attention  les 
plaidoiries  orales,  presentees  devant  le  Tribunal  par  les  Agents  et  les 
Conseils  des  deux  Parties  en  litige ; 

Considerant  que  le  litige,  soumis  a la  decision  du  Tribunal  d’Ar- 
bitrage, consiste  dans  un  conflit  entre  les  Etats-Unis  d’Amerique  et  les 
Etats-Unis  Mexicains  qui  ne  saurait  etre  regie  que  sur  la  base  des 
traites  internationaux  et  des  principes  du  droit  international ; 

Considerant  que  les  Traites  internationaux,  conclus  depuis  I’annee 
1848  jusqu’au  compromis  du  22  mai  1902,  entre  les  deux  Puissances 
en  litige,  constatent  le  caractere  eminemment  international  de  ce 
conflit ; 

Considerant  que  toutes  les  parties  d’un  jugement  ou  d’un  arret  con- 
cernant  les  points  debattus  au  litige  s’eclairent  et  se  completent  mu- 
tuellement  et  qu’elles  servent  toutes  a preciser  le  sens  et  la  portee  du 
dispositif,  a determiner  les  points  sur  lesquels  il  y a chose  jugee  et  qui 
partant  ne  peuvent  etre  remis  en  question ; 

Considerant  que  cette  regie  ne  s’applique  pas  seulement  aux  juge- 
ments  des  tribunaux  institues  par  I’Etat,  mais  egalement  aux  sentences 
arbitrales,  rendues  dans  les  limites  de  la  competence  fixees  par  le 
compromis ; 

Considerant  que  ce  meme  principe  doit,  a plus  forte  raison,  etre 
applique  aux  arbitrages  internationaux ; 

Considerant  que  la  Convention  du  4 juillet  1868,  conclue  entre  les 
deux  Etats  en  litige,  avait  accorde  aux  Commissions  Mixtes,  nommees 
par  ces  Etats,  ainsi  qu’au  Surarbitre  a designer  eventuellement,  le 
droit  de  statuer  sur  leur  propre  competence; 

Considerant  que  dans  le  litige,  soumis  a la  decisions  du  Tribunal 
d’Arbitrage,  en  vertu  du  compromis  du  22  mai  1902,  il  y a,  non  seule- 
ment identite  des  parties  en  litige,  mais  egalement  identite  de  la  ma- 
tiere,  jugee  par  la  sentence  arbitrale  de  Sir  Edward  Thornton  comme 
Surarbitre  en  1875  et  amendee  par  lui  le  24  octobre  1876; 


THE  PIOUS  FUND  CASE 


431 


Considerant  que  le  Gouvernement  des  Etats-Unis  Mexicains  a con- 
sciencieusement  execute  la  sentence  arbitrate  de  1875  et  1876,  en  payant 
les  annuites  adjugees  par  le  Surarbitre; 

Considerant  que,  depuis  1869,  trente-trois  annuites  n’ont  pas  ete 
payees  par  le  Gouvernement  des  Etats-Unis  Mexicains  au  Gouveme- 
ment  des  Etats-Unis  d’Amerique  et  que  les  regies  de  la  prescription, 
etant  exclusivement  du  domaine  du  droit  civil,  ne  sauraient  etre  appli- 
quees  au  present  conflit  entre  les  deux  Etats  en  litige; 

Considerant,  en  ce  qui  concerne  la  monnaie,  dans  laquelle  le  paie- 
ment  de  la  rente  annuelle  doit  avoir  lieu,  que  le  dollar  d’argent,  ayant 
cours  legal  au  Mexique,  le  paiement  en  or  ne  peut  etre  exige  qu’en 
vertu  d’une  stipulation  expresse; 

Que,  dans  I’espece,  telle  stipulation  n’existant  pas,  la  Partie  defen- 
deresse  a le  droit  de  se  liberer  en  argent; 

Que,  par  rapport  a ce  point,  la  sentence  de  Sir  Edward  Thornton 
n’a  pas  autrement  force  de  chose  jugee  que  pour  les  vingt  et  une  an- 
nuites a I’egard  desquelles  le  surarbitre  a decide  que  le  paiement  devait 
avoir  lieu  en  dollars  d’or  Mexicains,  puisque  la  question  du  mode  de 
paiement  ne  concerne  pas  le  fond  du  droit  en  litige  mais  seulement 
I’execution  de  la  sentence; 

Considerant,  que  d’apres  I’Article  X du  Protocole  de  Washington 
du  22  mai  1902,  le  present  Tribunal  d’ Arbitrage  aura  a statuer,  en 
cas  de  condamnation  de  la  Republique  du  Mexique,  dans  quelle  mon- 
naie le  paiement  devra  avoir  lieu ; 

Par  ces  motifs  le  Tribunal  d’Arbitrage  decide  et  prononce  a I’unani- 
mite  ce  qui  suit : 

1°.  Que  la  dite  reclamation  des  Etats-Unis  d’Amerique  au  profit  de 
I’Archeveque  de  San  Francisco  et  de  I’Eveque  de  Monterey  est  regie 
par  le  principe  de  la  res  judicata,  en  vertu  de  la  sentence  arbitrate  de 
Sir  Edward  Thornton  du  11  novembre  1875  amendee  par  lui  le  24 
octobre  1876; 

2°.  Que,  conformement  a cette  sentence  arbitrate,  le  Gouvernement 
de  la  Republiqe  des  Etats-Unis  Mexicains  devra  payer  au  Gouveme- 
ment  des  Etats-Unis  d’Amerique  la  somme  d’un  million  quatre  cent 
vingt  mille  six  cent  quatre  vingt  deux  Dollars  du  Mexique  et  soixante 
sept  cents  (1,420,682.67/100  Dollars  du  Mexique)  en  monnaie  ayant 
cours  legal  au  Mexique,  dans  le  delai  fixe  par  I’Article  X du  Protocole 
de  Washington  du  22  mai  1902. 

Cette  somme  d’un  million  quatre  cent  vingt  mille  six  cent  quatre 
vingt  deux  Dollars  et  soixante  sept  cents  (1,420,682.67/100  Dollars) 
constituera  le  versement  total  des  annuites  echues  et  non  payees  par 
le  Gouvernement  de  la  Republique  Mexicaine,  savoir  de  la  rente  an- 
nuelle de  quarante  trois  mille  cinquante  Dollars  du  Mexique  et  quatre 
vingt  dix  neuf  cents  (43,050.99/100  Dollars  du  Mexique)  depuis  le 
2 fevrier  1869  jusqu’au  2 fevrier  1902; 

3°.  Le  Gouvernement  de  la  Republique  des  Etats-Unis  Mexicains 
paiera  au  Gouvernement  des  Etats-Unis  d’Amerique  le  2 fevrier  1903, 
et  chaque  annee  suivante  a cette  meme  date  du  2 fevrier,  a perpetuite 
la  rente  annuelle  de  quarante  trois  mille  cinquante  Dollars  du  Mexique 


432 


ORIGINAL  TEXTS 


et  quatre  vingt  dix  neuf  cents  (43,050.99/100  Dollars  du  Mexique) 
en  monnaie  ayant  cours  legal  au  Mexique. 

Fait  a La  Haye,  dans  THotel  de  la  Cour  permanente  d’Arbitrage, 
en  triple  original,  le  14  octobre  1902. 

Henning  Matzen 

Edw.  Fry 

Martens 

T.  M.  C.  Asser 

A.  F.  DE  Savornin  Lohman 


Agreement  for  Arbitration,  May  22,  i<)02'^ 

Por  cuanto,  en  virtud  de  las  disposiciones  de  una  Convencion  ajus- 
tada  entre  las  Altas  Partes  Contratantes  arriba  mencionadas,  con  fecha 
4 de  Julio  de  1868,  y siguientes  convenciones  suplementarias  de  ella, 
fue  sometida  a la  Comision  Mixta  establecida  por  dicha  Convencion 
una  reclamacion  presentada  por  parte  y en  favor  de  los  prelados  de  la 
Iglesia  Catolica  Romana  de  California  contra  la  Republica  de  Mexico, 
por  reditos  anuales  de  cierto  fondo  llamado  el  “Fondo  Piadoso  de  las 
Califomias,”  los  cuales  reditos  se  consideraron  devengados  desde  el 
2 de  Febrero  de  1848,  fecha  de  la  firma  del  tratado  de  Guadalupe 
Hidalgo,  hasta  el  1°.  de  Febrero  de  1869,  fecha  del  canje  de  las  ratifi- 
caciones  de  la  Convencion  arriba  referida ; y 

Por  cuanto  la  indicada  Comision  Mixta,  despues  de  examinar  dicha 
reclamacidn,  que  fue  senalada  en  el  libro  de  registro  con  el  numero 
493  e intitulada  “Thaddeus  Amat  Obispo  Catdlico  Romano  de  Mon- 
terrey, por  la  corporacion  unitaria  que  representa,  y Joseph  S.  Ale- 
many  Obispo  Catdlico  Romano  de  San  Francisco,  por  la  corporacion 
unitaria  que  representa,  contra  la  Republica  de  Mexico”  decidio  la 
reclamacion  contra  la  Republica  de  Mexico,  y en  favor  de  dichos  recla- 
mantes,  dando  un  laudo  por  novecientos  cuatro  mil  setecientos  pesos 
noventa  y nueve  centavos  ($904,700.99)  ; los  cuales,  como  se  expresa 
en  la  exposicion  de  dicho  tribunal,  fueron  el  importe  de  reditos  venci- 
dos  en  veintiun  ahos  a raz6n  de  cuarenta  y tres  mil  ochenta  pesos 
noventa  y nueve  centavos  ($43,080.99)  anuales  sobre  la  suma  de  sete- 
cientos diez  y ocho  mil  diez  y seis  pesos  cincuenta  centavos  ($718,- 
016.50)  y habian  de  pagarse  en  oro  mexicano;  y dicha  suma  de  nove- 
cientos cuatro  mil  setecientos  pesos  noventa  y nueve  centavos  ($904,- 
700.99)  fue  completamente  pagada  y finiquitada  en  conformidad  con 
los  terminos  de  dicha  Convencion  ; y 

Por  cuanto  los  Estados  Unidos  de  America  por  los  Obispos  Cato- 
licos  Romanos  arriba  nombrados  y sus  sucesores  con  el  mismo  titulo 
e interes  ban  reclamado  a Mexico  despues  de  dicho  laudo  los  sucesi- 
vos  vencimientos  de  dichos  reditos  y han  insistido  en  que  la  expresada 
reclamacion  fue  definitivamente  juzgada  y su  monto  fijado  en  contra 
de  Mexico  y a favor  de  los  primitivos  reclamantes  y de  sus  sucesores 

If/.  5.  Statutes  at  Large,  vol.  32,  p.  1916. 


THE  PIOUS  FUND  CASE 


433 


con  el  mismo  titulo  e interes,  conforme  a la  primera  Convencion  men- 
cionada  de  1868,  en  virtud  de  dicho  laudo  como  res  judicata;  y han 
sostenido  ademas  que  independientemente  de  tal  laudo  su  reclamacion 
contra  Mexico  era  justa;  aserciones  ambas  que  han  sido  controvertidas 
e impugnadas  por  la  Republica  de  Mexico,  y las  Altas  Partes  signa- 
tarias  de  este  Compromiso,  animadas  de  un  vivo  deseo  de  que  la  con- 
troversia  asi  suscitada  sea  amigable,  satisfactoria  y justamente 
resuelta,  han  convenido  en  someter  dicha  controversia  a la  decisidn 
de  arbitros,  quienes  se  ajustaran  en  todo  lo  que  no  se  disponga  de  otro 
modo  por  el  presente  instrumento,  a las  prevenciones  de  la  Conven- 
cion internacional  para  el  arreglo  pacifico  de  controversias  intema- 
cionales  comunmente  denominada  “Convencion  de  La  Haya”  y estaran 
facultados  para  resolver: 

1°.  Si  dicha  reclamacion  como  consecuencia  del  laudo  anterior  esta 
regida  por  el  principio  de  res  judicata;  y 

De  no  estarlo,  si  es  justa  la  misma  reclamacion. 

Y para  pronunciar  un  fallo  6 laudo  tal  que  sea  adecuado  y conve- 
niente  a todas  las  circunstancias  del  caso  : 

Por  tanto,  se  conviene  entre  los  Estados  Unidos  de  America,  repre- 
sentados  por  John  Hay,  Secretario  de  Estado  de  los  Estados  Unidos 
de  America,  y la  Republica  de  Mexico,  representada  por  Manuel  de 
Azpiroz,  Embajador  Extraordinario  y Plenipotenciario  de  la  Repu- 
blica de  Mexico  en  los  Estados  Unidos  de  America,  en  lo  siguiente; 

I 

Las  referidas  cuestiones  seran  sometidas  al  tribunal  especial  que  en 
seguida  se  autoriza  para  examinarlas,  determinarlas  y fallarlas. 

II 

El  tribunal  especial  constituido  por  este  instrumento  se  compondra 
de  cuatro  arbitros,  debiendo  ser  dos  nombrados  por  cada  una  de  las 
altas  partes  contratantes  y un  arbitro  superior  que  sera  elegido  con 
arreglo  a las  disp>osiciones  de  la  Convencion  de  La  Haya.  Los  arbitros 
nombrados,  como  se  ha  dicho,  por  cada  una  de  las  Altas  Partes  Con- 
tratantes seran  dados  a conocer  por  la  parte  que  los  nombro  a la  otra 
parte  dentro  de  sesenta  dias  que  correran  desde  la  fecha  de  este  proto- 
colo.  Ninguno  de  los  arbitros  nombrados  como  se  ha  dicho  sera 
oriundo  6 ciudadano  de  las  partes  contratantes.  El  laudo  podra  ser 
pronunciado  por  mayoria  de  votes  de  dicho  tribunal.  Todas  las  va- 
cantes  que  ocurran  entre  los  miembros  de  dicho  tribunal  por  causa  de 
muerte,  separacidn  6 inhabilidad  que  provenga  de  causa  anterior  al 
pronunciamiento  del  laudo  seran  cubiertas  del  mismo  modo  que  fue 
nombrado  el  miembro  cesante,  como  se  dispone  en  la  Convencibn  de 
La  Haya,  y si  ocurrieren  despues  que  dicho  tribunal  se  haya  instalado 
podran  justificar,  a juicio  del  tribunal,  una  prbrroga  del  termino 
senalado  para  la  audiencia  6 resolucibn,  segun  sea  el  caso,  con  tal  que 
ella  no  pase  de  treinta  dias. 


434 


ORIGINAL  TEXTS 


III 

Todas  las  alegaciones,  testimonios,  pruebas,  informes  en  derecho  y 
conclusiones  6 laudos  de  los  Comisionados  6 del  tercero  en  discordia, 
presentados  ante  la  Comision  Mixta  arriba  referida  6 acordados  por 
ella,  son  de  aducirse  como  pruebas  ante  el  tribunal  que  ahora  se  nom- 
bra,  juntamente  con  toda  la  correspondencia  habida  entre  los  dos 
paises  concerniente  a los  puntos  comprendidos  en  este  arbitramento ; 
exhibiendose  al  nuevo  tribunal  dichos  documentos  originales  6 copias 
de  ellos  debidamente  certificados  por  los  Departamentos  de  Estado 
respectivos  de  las  Altas  Partes  Contratantes.  Cuando  cualquiera  de 
las  dos  partes  cite  libros  impresos  por  via  de  prueba,  la  que  ofrezca 
tal  prueba  especificara  el  volumen,  edicion  y pagina  de  la  parte  que 
quiera  se  lea,  y proporcionara  al  tribunal  impresos  los  pasajes  que 
deseare  hacer  yaler,  cuya  exactitud  sera  comprobada  con  testimonio 
legal ; y si  la  obra  original  no  esta  ya  formando  parte  del  archivo  de  la 
primera  Comision  Mixta,  el  libro  mismo  sera  puesto  a disposicion  de 
la  parte  contraria,  en  los  despachos  respectivos  del  Secretario  de 
Estado  6 del  Embajador  de  Mexico  en  Washington,  segun  sea  el  caso, 
treinta  dias  antes  de  la  reunion  del  tribunal  que  aqui  se  nombra. 

IV 

Cada  parte  podra  pedir  a la  otra  que  de  a conocer  cualquier  hecho  6 
documento  considerado  como  prueba  6 que  contenga  materia  de  prueba 
interesante  6 la  parte  que  la  solicita;  debiendo  ser  descrito  el  docu- 
mento deseado  con  suficiente  exactitud  para  su  identificacion ; y se 
dara  la  noticia  se  hara  la  exhibicion  pedida,  mediante  una  relacion  del 
hecho,  6 el  deposito  de  una  copia  de  dicho  documento  (certificada  por 
quien  lo  tenga  legalmente  en  guarda  si  es  un  documento  publico,  y 
autorizada  por  su  poseedor  si  el  documento  fuere  privado)  y a la  parte 
contraria  se  debera  dar  la  oportunidad  de  examinar  el  original  en  la 
ciudad  de  Washington  en  el  Departamento  de  Estado  6 en  el  despacho 
del  Embajador  de  Mexico  segun  fuere  el  caso.  Si  la  noticia  6 exhibi- 
cion deseada  se  obtuviere  demasiado  tarde  para  que  pueda  ser  con- 
testada  diez  dias  antes  que  el  tribunal  aqui  establecido  abra  la  auden- 
cia,  en  tal  caso  la  contestacion  que  se  de  al  pedimento,  6 el  documento 
que  se  produzca,  se  presentara  al  tribunal  aqui  establecido,  tan  pronto 
como  fuere  posible. 

V 

Todo  testimonio  oral  que  no  conste  en  el  archivo  del  primer  arbitra- 
mento podra  rendirse  por  cualquiera  de  las  partes  ante  algun  juez  6 
secretario  de  juzgado  de  letras  6 notario  publico,  de  la  manera,  con 
las  precauciones  y bajo  las  condiciones  prescritas  para  tal  caso  en  las 
reglas  de  la  Comision  Mixta  de  Mexico  y los  Estados  Unidos  de  Ame- 
rica, y adoptadas  por  dicho  tribunal  el  10  de  Agosto  de  1869,  en  todo 
lo  que  sean  aplicables.  Cuando  el  testimonio  se  extienda  por  escrito, 
firmado  que  sea  por  el  testigo  y legalizado  por  el  funcionario  ante 


THE  PIOUS  FUND  CASE 


435 


quien  se  haya  rendido,  debera  ser  sellado,  dirigido  al  tribunal  que 
aqui  se  establece,  y asi  sellado  se  entregara  en  deposito  en  el  Despacho 
de  Relaciones  exteriores  de  Mexico  6 en  el  Departamento  de  Estado 
de  los  Estados  Unidos  a fin  de  que  sea  remitido  al  tribunal  que  aqui 
se  establece  cuando  el  mismo  se  retina. 

VI 

Dentro  de  sesenta  dias  desde  la  fecha  de  este  instrumento  la  parte 
de  los  Estados  Unidos  de  America,  por  medio  de  su  agente  6 abogado, 
debera  preparar  y entregar  al  Departamento  de  Estado  arriba  dicho 
un  memorial  impreso  del  origen  y monto  de  la  reclamacion,  acom- 
panado  de  las  citas  de  libros  impresos  y de  aquellas  partes  de  las 
pruebas  6 piezas  del  archivo  del  primer  arbitramento,  en  que  quiera 
fundar  su  reclamacion,  dando  copias  de  los  mismos  documentos  a la 
Embajada  de  la  Repiiblica  Mexicana  en  Washington  para  uso  del 
agente  6 abogado  de  Mexico. 

VII 

Dentro  de  cuarenta  dias  despues  de  la  entrega  del  memorial  a la 
Embajada  Mexicana,  el  agente  6 abogado  de  la  Repiiblica  de  Mexico 
entregara  al  Departamento  de  Estado  de  los  Estados  Unidos  de  Ame- 
rica, de  la  misma  manera  y con  iguales  referencias,  un  memorial  de 
sus  alegaciones  y razones  de  oposicion  a la  reclamacion  dicha. 

VIII 

Las  prevenciones  de  los  parrafos  VI  y VII  no  impediran  a los 
agentes  6 abogados  de  las  partes  contratantes  reforzar  oralmente  6 
por  escrito  sus  argumentos  citando  cualesquiera  documentos  proba- 
torios  li  otras  pruebas  que  consideren  utiles  y les  haya  sido  dado  cono- 
cer  y examinar  en  un  periodo  subsiguiente  a los  terminos  senalados 
para  el  traslado  del  memorial  y la  contestacion. 

IX 

La  primera  reunion  del  tribunal  arbitral  arriba  nombrado  se  verifi- 
cara  con  objeto  de  elejir  un  arbitro  superior  el  1°.  de  Septiembre  de 
1902  en  la  Haya  en  el  local  que  al  efecto  destine  la  Oficina  Interna- 
cional  de  la  Haya  constituida  en  virtud  de  la  convencion  de  la  Haya, 
antes  referida  y para  dar  principio  a las  audiencias  del  tribunal  se  de- 
signa  el  15  de  Septiembre  de  1902,  6 si  en  esa  fecha  no  estuviere  ya 
electo  el  arbitro  superior,  las  audiencias  comenzaran  tan  pronto  como 
sea  posible  y no  despues  del  15  de  Octubre  de  1902,  en  cuyo  tiempo 
y lugar  6 en  otras  fechas  que  el  tribunal  disponga  (y  en  Bruselas,  si 
el  tribunal  determinare  no  tener  sus  sesiones  en  la  Haya)  explica- 
ciones  y alegatos,  que  se  presenten  segiin  lo  determine  el  tribunal,  y 
el  caso  le  quedara  sometido.  Esta  sumision  con  todos  los  alegatos, 
relacion  de  hechos  y presentacion  de  documentos  estara  concluida  den- 
tro de  los  treinta  dias  siguientes  al  termino  senalado  para  las  audien- 
cias del  tribunal  (a  no  ser  que  este  acuerde  una  prorroga  que  no  ex- 


436 


ORIGINAL  TEXTS 


cedera  de  treinta  dias)  y el  laudo  se  pronunciara  dentro  de  treinta 
dias  despues  de  cerradas  las  audiencias.  Copias  certificadas  del  laudo 
se  daran  a los  agentes  6 abogados  de  las  respectivas  partes  y se  en- 
viaran  al  Embajador  de  Mexico  en  Washington  y al  Secretario  de 
Estado  de  los  Estados  Unidos,  asi  como  al  Ministro  de  Negocios 
Extranjeros  de  los  Raises  Bajos  para  su  archivo. 

X 

Si  el  laudo  del  tribunal  fuere  adverso  a la  Republica  Mexicana,  sus 
conclusiones  expresaran  la  suma,  la  especie  de  moneda  en  que  ha  de 
ser  pagada,  y la  suma  sera  la  que  se  considere  justa  conforme  a lo 
probado  y alegado.  La  suma,  si  alguna  fuere  definitivamente  fallada, 
sera  pagada  al  Secretario  de  Estado  de  los  Estados  Unidos  de  Ame- 
rica dentro  de  ocho  meses  desde  la  fecha  del  laudo. 

XI 

Los  agentes  de  abogados  de  las  respectivas  partes  podran  convenir 
en  la  admision  de  cualesquiera  hechos,  y tal  convenio  debidamente 
firmado  sera  admitido  como  prueba  de  los  mismos  hechos. 

XII 

Cada  una  de  las  partes  contratantes  pagara  sus  propios  gastos  y la 
mitad  de  los  comunes  del  arbitraje,  incluyendo  la  remuneracibn  de  los 
arbitros ; mas  estas  costas  no  constituiran  parte  de  la  suma  fallada. 

XIII 

Habra  lugar  a revision  conforme  a lo  prevenido  en  el  articulo  55 
de  la  Convenci6n  de  La  Haya,  si  fuere  promovida  dentro  de  ocho 
dias  desde  la  notificacion  del  laudo.  Las  pruebas  admisibles  en  este 
recurso  se  presentaran  dentro  de  diez  dias  desde  la  fecha  en  que  se 
concediere  (el  cual  solamente  se  otorgara,  si  asi  se  acordare,  dentro 
de  cinco  dias  despues  de  su  promocibn)  y las  pruebas  de  la  parte  con- 
traria  dentro  de  los  diez  dias  siguientes  a no  ser  que  se  conceda  mayor 
plazo  por  el  tribunal.  Los  alegatos  se  produciran  dentro  de  diez  dias 
despues  de  la  presentacibn  de  todas  las  pruebas,  y el  fallo  b laudo  se 
dara  dentro  de  los  diez  dias  siguientes.  Todas  las  disposiciones  apli- 
cables  al  fallo  b laudo  recurrido  se  aplicaran  en  lo  posible  el  fallo  b 
laudo  de  revisibn,  bien  entendido  que  en  los  procedimientos  de  este 
recurso  se  empleara  la  lengua  francesa. 

XIV 

El  laudo  ultimo  dado  conforme  a este  compromiso  sera  definitivo  y 
concluyente  en  todos  los  puntos  propuestos  a la  consideracibn  del 
tribunal. 

Hecho  por  duplicado  en  ingles  y en  espanol  en  Washington  hoy 
dia  22  de  Mayo,  A.  D.  1902. 

John  Hay  [seal] 

M.  de  Azpiroz  [seal] 


THE  PIOUS  FUND  CASE 


437 


Convention  of  July  4,  1868,  between  the  United  States  of  America  and 
the  Republic  of  Mexico  for  the  Adjustment  of  Claims^ 

Considerando  que  es  conveniente  mantener  y ensanchar  los  senti- 
mientos  amistosos  entre  la  republica  Mexicana  y los  Estados  Unidos, 
y afianzar  asi  el  sistema  y principios  de  gobierno  republicano  en  el 
continente  Americano ; y considerando  que  con  posterioridad  a la 
celebracion  del  tratado  de  Guadalupe  Hidalgo,  de  2 de  Febrero  de 
1848,  ciudadanos  de  la  republica  Mexicana  ban  hecho  reclamaciones 
y presentado  quejas,  con  motivo  de  perjuicios  sufridos  en  sus  personas 
6 sus  propiedades,  por  autoridades  de  los  Estados  Unidos,  y reclama- 
ciones y quejas  semejantes  se  ban  hecho  y presentado  con  motivo  de 
perjuicios  sufridos  por  ciudadanos  de  los  Estados  Unidos,  en  sus  per- 
sonas 6 sus  propiedades  por  autoridades  de  la  republica  Mexicana, 
[el  Presidente  de  la  republica  Mexicana]  y el  Presidente  de  los  Esta- 
dos Unidos  de  America  ban  determinado  concluir  una  convencion 
para  el  arreglo  de  dichas  reclamaciones  y quejas,  y ban  nombrados 
sus  plenipotenciarios ; el  Presidente  de  la  republica  Mexicana,  a 
Matias  Romero,  acreditado  como  Enviado  Extraordinario  y Ministro 
plenipotenciario  de  la  republica  Mexicana  en  los  Estados  Unidos ; y 
el  Presidente  de  los  Estados  Unidos,  a William  H.  Seward,  Secretario 
de  Estado,  quienes  despues  de  haberse  mostrado  sus  respectivos  plenos 
poderes  y encontradolos  en  buena  y debida  forma,  ban  convenido  en 
los  Articulos  siguientes: 

Articulo  I 

Todas  las  reclamaciones  becbas  por  corporaciones,  companias  6 in- 
dividuos  particulares,  ciudadanos  de  la  republica  Mexicana,  proce- 
dentes  de  perjuicios  sufridos  en  sus  personas  6 en  sus  propiedades,  por 
autoridades  de  los  Estados  Unidos,  y todas  las  reclamaciones  becbas 
por  corporaciones,  companias  6 individuos  particulares,  ciudadanos 
de  los  Estados  Unidos,  procedentes  de  perjuicios  sufridos  en  sus  per- 
sonas 6 en  sus  propiedades,  por  autoridades  de  la  republica  Mexicana, 
que  bayan  sido  presentadas  a cualquiera  de  los  dos  gobiernos,  solici- 
tando  su  interposicion  para  con  el  otro,  con  posterioridad  a la  celebra- 
cion del  tratado  de  Guadalupe  Hidalgo  entre  la  republica  Mexicana 
y los  Estados  Unidos,  de  2 de  Febrero  de  1848,  y que  aun  permanecen 
pendientes,  de  la  misma  manera  que  cualesquiera  otras  reclamaciones 
que  se  presentaren  dentro  del  tiempo  que  mas  adelante  se  especificara, 
se  referiran  a dos  comisionados,  uno  de  los  cuales  sera  nombrado  por 
el  Presidente  de  la  republica  Mexicana  y el  otro  por  el  Presidente  de 
los  Estados  Unidos,  con  el  consejo  y aprobacion  del  Senado.  En 
caso  de  muerte,  ausencia  6 incapacidad  de  alguno  de  los  comisiona- 
dos, 6 en  caso  de  que  algnno  de  los  comisionados  cese  de  funcionar 
como  tal,  6 suspenda  el  ejercicio  de  sus  funciones,  el  Presidente  de  la 
republica  Mexicana  6 el  Presidente  de  los  Estados  Unidos  respectiva- 
mente,  nombraran  desde  luego  otra  persona  que  baga  de  comisionado 
en  lugar  del  que  originalmente  fue  nombrado. 


^U.  S.  Statutes  at  Large,  vol.  IS,  p.  679. 


438 


ORIGINAL  TEXTS 


Los  comisionados  nombrados  de  esta  manera,  se  reuniran  en  Wash- 
ington dentro  de  seis  meses,  despues  dc  cangeadas  las  ratificaciones 
de  esta  convencion,  y antes  de  desempehar  sus  funciones,  haran  y 
suscribiran  una  declaracion  solemne  de  que  examinaran  y decidiran 
imparcial  y cuidadosamente,  segun  su  mejor  saber,  y conforme  con 
el  derecho  publico,  la  justicia  y equidad,  y sin  temor  6 afeccion  a su 
respective  pais,  sobre  todas  las  reclamaciones  antes  especificadas,  que 
se  les  sometan  por  los  gobiemos  de  la  republica  Mexicana  y de  los 
Estados  Unidos  respectivamente,  y dicha  declaracion  se  asentara  en 
la  acta  de  sus  procedimientos. 

Los  comisionados  procederan  entonces  a nombrar  una  tercera  per- 
sona que  hara  de  arbitro  en  el  caso  6 cases  en  que  difieran  de  opinion. 

Si  no  pudieren  convenir  en  el  nombre  de  esta  tercera  persona,  cada 
uno  de  ellos  nombrara  una  persona,  y en  todos  y cada  uno  de  los 
cases  en  que  los  comisionados  difieran  de  opinion  respecto  de  la  deci- 
sion que  deban  dar,  se  determinara  por  suerte  quien  de  las  dos  per- 
sonas asi  nombradas  hara  de  arbitro  en  ese  caso  particular.  La  per- 
sona 6 personas  que  se  eligieren  de  esa  manera,  para  ser  arbitros, 
haran  y suscribaran,  antes  de  obrar  como  tales,  en  cualquier  caso, 
una  declaracion  solemne  en  una  forma  semejante  a la  que  debera 
haber  sido  ya  hecha  y suscrita  por  los  comisionados,  la  cual  se  asentara 
tambien  en  la  acta  de  los  procedimientos.  En  caso  de  muerte,  ausen- 
cia  6 incapacidad  de  la  persona  6 personas  nombradas  arbitros,  6 en 
caso  de  que  suspendan  el  ejercicio  de  sus  funciones,  se  rehusen  a 
desempenarlas  6 cesen  en  ellas,  otra  p>ersona  sera  nombrado  arbitro 
de  la  manera  que  queda  dicha,  en  lugar  de  la  persona  originalmente 
nombrada,  y hara  y suscribira  la  declaracion  antes  mencionada. 

ArtIculo  II 

En  seguida  procederan  juntamente  los  comisionados  a la  investiga- 
cion  y decision  de  las  reclamaciones  que  se  les  presenten,  en  el  orden 
y de  la  manera  que  de  comun  acuerdo  creyeren  conveniente,  pero 
recibiendo  solamente  las  pruebas  6 informes  que  se  les  ministren  por 
los  respectivos  gobiernos  6 en  su  nombre.  Tendran  obligacion  de 
recibir  y leer  todas  las  manifestaciones  6 documentos  escritos  que  se 
les  presenten  por  sus  gobiernos  respectivos,  6 en  su  nombre,  en  apoyo 
6 respuesta  a cualquiera  reclamacion,  y de  oir,  si  se  les  pidiere,  a una 
persona  por  cada  lado,  en  nombre  de  cada  gobierno,  en  todas  y cada 
una  de  las  reclamaciones  separadamente.  Si  dejaren  de  convenir  sobre 
alguna  reclamacion  particular,  llamaran  en  su  ausilio  al  arbitro  que 
hayan  nombrado  de  comun  acuerdo,  6 a quien  la  suerte  haya  designado 
segun  fuere  el  caso,  y el  arbitro,  despues  de  haber  examinado  las 
pruebas  producidas  en  favor  y en  contra  de  la  reclamacion,  y despues 
de  haber  oido,  si  se  le  pidiere,  a una  persona  por  cada  lado,  como 
queda  dicho,  y consultado  con  los  comisionados,  decidira  sobre  ella 
finalmente  y sin  apelacion.  La  decision  de  los  comisionados  y del 
arbitro  se  dara  en  cada  reclamacion  por  escrito,  especificara  si  la 
suma  que  se  concediere  se  pagara  en  oro  6 en  moneda  corriente  de 


THE  PIOUS  FUND  CASE 


439 


los  Estados  Unidos,  y sera  firmada  por  ellos  respectivamente.  Cada 
gobierno  podra  nombrar  una  persona  que  concurra  a la  comision  en 
nombre  del  gobierno  respective,  como  agente ; que  presente  6 defienda 
las  reclamaciones  en  nombre  del  mismo  gobierno,  y que  responda  a 
las  reclamaciones  hechas  contra  el,  y que  le  represente  en  general  en 
todos  los  negocios  que  tengan  relacion  con  la  investigacion  y decision 
de  reclamaciones. 

El  Presidente  de  la  Republica  Mexicana  y el  Presidente  de  los  Esta- 
dos Unidos  de  America  se  comprometen  solemne  y sinceramente  en 
esta  convencion,  a considerar  la  decision  de  los  comisionados  de 
acuerdo,  6 del  arbitro,  segun  fuere  el  caso,  como  absolutamente  final 
y definitiva,  respecto  de  cada  una  de  las  reclamaciones  falladas  por 
los  comisionados  6 el  arbitro  respectivamente,  y a dar  entero  cumpli- 
miento  a tales  decisiones  sin  objecion,  evasion  ni  dilacion  ninguno. 
Se  conviene  que  ninguna  reclamacion  que  emane  de  acontecimientos 
de  fecha  anterior  al  2 de  Febrero  de  1848,  se  admetera  con  arreglo 
a esta  convencion. 

Articulo  III 

Todas  las  reclamaciones  se  presentaran  a los  comisionados  dentro 
de  ocho  meses  contados  desde  el  dia  de  su  primera  reunion,  a no  ser 
en  los  casos  en  que  se  manifieste  que  haya  habido  razones  para  dila- 
tarlas,  siendo  estas  satisfactorias  para  los  comisionados  6 para  el 
arbitro,  si  los  comisionados  no  se  convinieren,  y en  ese  y otros  casos 
semejantes  el  periodo  para  la  presentacion  de  las  reclamaciones  podra 
estenderse  por  un  plazo  que  no  exceda  de  tres  meses. 

Los  comisionados  tendran  la  obligacion  de  examinar  y decidir  todas 
las  reclamaciones  dentro  de  dos  anos  y seis  meses,  contados  desde  el 
dia  re  su  primera  reunion.  Los  comisionados  de  comun  acuerdo  6 el 
arbitro,  si  ellos  difirieren  podran  decidir  en  cada  caso,  si  una  reclama- 
cion ha  sido  6 no  debidamente  hecha,  comunicada  y sometida  a la 
comision,  ya  sea  en  su  totalidad  6 en  parte  y cual  sea  esta,  con  arreglo 
al  verdadero  espiritu  y a la  letra  de  esta  convencion. 

Articulo  IV 

Cuando  los  comisionados  y el  arbitro  hayan  decidido  todos  los  casos 
que  les  hayan  sido  debidamente  sometidos,  la  suma  total  fallada  en 
todos  los  casos  decididos  en  favor  de  los  ciudadanos  de  una  parte, 
se  deducira  de  la  suma  total  fallada  en  favor  de  los  ciudadanos  de  la 
otra  parte,  y la  diferencia  hasta  la  cantidad  de  trescientos  mil  pesos 
en  oro,  6 su  equivalente,  se  pagara  en  la  ciudad  de  Mexico  6 en  la 
ciudad  de  Washington,  al  gobierno  en  favor  de  cuyos  ciudadanos  se 
haya  fallado  la  mayor  cantidad,  sin  interes,  ni  otra  deduccion  que  la 
especificada  en  el  Articulo  VI  de  esta  convencion.  El  resto  de  dicha 
diferencia  se  pagara  en  abonos  anuales  que  no  escedan  de  trescientos 
mil  pesos  en  oro  6 su  equivalente,  hasta  que  se  haya  pagado  el  total 
de  la  diferencia. 


440 


ORIGINAL  TEXTS 


Articulo  V 

Las  altas  partes  contratantes  convienen  en  considerar  el  resultado 
de  los  procedimientos  de  esta  comision,  como  arreglo  completo,  per- 
fecto  y final,  de  toda  reclamacion  contra  cualquiera  gobiemo,  que 
proceda  de  acontecimientos  de  fecha  anterior  al  canje  de  las  ratifica- 
ciones  de  la  presente  convencion ; y se  comprometen  ademas  a que 
toda  reclamacion,  ya  sea  que  se  haya  presentado  6 no  a la  referida 
comision,  sera  considerada  y tratada,  concluidos  los  procedimientos 
de  dicha  comision,  como  finalmente  arreglada,  desechada  y para  siem- 
pre  inadmisible. 

Articulo  VI 

Los  comisionados  y el  arbitro  llevaran  una  relacion  fiel  y actas  exac- 
tas  de  sus  procedimientos  con  especificacion  de  las  fechas;  con  este 
objeto  nombraran  dos  secretaries  versados  en  las  lenguas  de  ambos 
paises,  para  que  les  ayuden  en  el  arreglo  de  los  asuntos  de  la  comision. 
Cada  gobiemo  pagara  a su  comisionado  un  sueldo  que  no  exceda  de 
cuatro  mil  quinientos  pesos  al  ano,  en  moneda  corriente  de  los  Estados 
Unidos,  cuya  cantidad  sera  la  misma  para  ambos  gobiemos.  La  com- 
pensacion  que  haya  de  pagarse  al  arbitro  se  determinara  por  consen- 
timiento  mutuo,  al  terminarse  la  comision ; pero  podran  hacerse  por 
cada  gobiemo  adelantos  necesarios  y razonables  en  virtud  de  la  reco- 
mendacion  de  los  dos  comisionados.  El  sueldo  de  los  secretaries  no 
excedera  de  la  suma  de  dos  mil  quinientos  pesos  al  ano,  en  moneda 
corriente  de  los  Estados  Unidos.  Los  gastos  todos  de  la  comision, 
incluyendo  los  contingentes,  se  pagaran  con  una  reduccion  propor- 
cional  de  la  cantidad  total  fallada  por  los  comisionados,  siempre  que 
tal  deduccion  no  exceda  del  cinco  por  ciento  de  las  cantidades  falladas. 
Si  hubiere  algun  deficiente,  lo  cubriran  ambos  gobiernos  por  mitad. 

Articulo  VII 

La  presente  convencion  sera  ratificada  por  el  Presidente  de  la  repu- 
blica  Mexicana,  con  aprobacion  del  Congreso  de  la  misma,  y por  el 
Presidente  de  los  Estados  Unidos,  con  el  consejo  y aprobacion  del 
Senado  de  los  mismos,  y las  ratificaciones  se  cangearan  en  Washing- 
ton dentro  de  nueve  meses  contados  desde  la  fecha  de  la  convencion,  6 
antes,  si  fuere  posible. 

En  fe  de  lo  cual,  los  respectivos  plenipxDtenciarios  la  hemos  firmado 
y sellado  con  nuestros  sellos  respectivos. 

Hecho  en  Washington  el  dia  cuatro  de  Julio,  del  ano  del  Senor  mil 
ochocientos  sesenta  y ocho. 

M.  Romero  [L.  S.] 

William  H.  Seward  [L.  S.] 


THE  VENEZUELAN  PREFERENTIAL  CASE 


Axvard  of  the  Tribunal,  February  22,  190^ 

Le  Tribunal  d’Arbitrage,  constitue  en  vertu  des  Protocoles,  signes  a 
Washington,  le  7 mai  1903,  entre  I’AUemagne,  la  Grande-Bretagne  et 
ITtalie  d’une  part,  et  le  Venezuela  d’autre  part; 

Considerant  que  d’autres  Protocoles  ont  ete  signes  a cet  effet  entre 
la  Belgique,  I’Espagne,  les  Etats-Unis  d’Amierique,  la  Franc/e:,  le 
Mexique,  les  Pays-Bas,  la  Suede  et  Norvege  d’une  part,  et  le  Venezuela 
d’autre  part ; 

Considerant  que  tous  ces  Actes  constatent  I’accord  le  toutes  les 
Parties  contractantes  relativement  au  reglement  des  reclamations  contre 
le  Gouvernement  Venezuelien ; 

Considerant  que  diverses  autres  questions,  resultant  de  Taction  des 
Gouvernements  d’Allemagne,  de  Grande-Bretagne  et  d’ltalie  con- 
cemant  le  reglement  des  reclamations,  n’etaient  pas  susceptibles  d’une 
solution  par  la  voie  diplomatique  ordinaire ; 

Considerant  que  les  Puissances  interessees  ont  decide  de  resoudre 
ces  questions  en  les  soumettant  a Tarbitrage,  conformement  aux  dispo- 
sitions de  la  Convention,  signee  a La  Haye  le  29  juillet  1899,  pour  le 
reglement  pacifique  des  conflits  internationaux ; 

Considerant  qu’en  vertu  de  TArticle  III  des  Protocoles  de  Washing- 
ton du  7 mai  1903,  Sa  Majeste  TEmpereur  de  Russie  a ete  invite  par 
toutes  les  Puissances  interessees  a designer  parmi  les  membres  de  la 
Cour  Permanente  d’Arbitrage  de  La  Haye  trois  Arbitres,  qui  for- 
meront  le  Tribunal  d’Arbitrage  charge  de  resoudre  et  de  regler  les 
questions  qui  lui  seront  soumises  en  vertu  des  Protocoles  susmen- 
tionnes ; 

Attendu  qu’aucun  des  Arbitres  ainsi  designes  ne  pourrait  etre  citoyen 
ou  sujet  de  Tune  quelconque  des  Puissances  signataires  ou  creancieres, 
et  que  le  Tribunal  devrait  se  reunir  a La  Haye  le  1®''  septembre  1903 
et  rendre  sa  sentence  dans  le  delai  de  six  mois ; 

Sa  Majeste  TEmp>ereur  de  Russie,  en  se  rendant  au  desir  de  toutes 
les  Puissances  signataires  des  Protocoles  susmentionnes  de  Washington 
du  7 mai  1903,  a daigne  nommer  comme  Arbitres  les  membres  suivants 
de  la  Cour  Permanente  d’Arbitrage  a La  Haye: 

Son  Excellence  Monsieur  N.  V.  Mouravdeff,  Secretaire  d’Etat  de  Sa 
Majeste  TEmpereur  de  Russie,  Conseiller  Prive  Actuel,  Ministre  de  la 
Justice  et  Procureur-General  de  TEmpire  de  Russie ; 

Monsieur  H.  Lammasch,  Professeur  de  Droit  Penal  et  de  Droit 
International  a TUniversite  de  Vienne,  Membre  de  la  Chambre  des 
Seigneurs  du  Parlement  autrichien,  et 

Son  Excellence  Monsieur  F.  De  Martens,  Docteur  en  Droit,  Con- 


^Official  report,  p.  129. 


442 


ORIGINAL  TEXTS 


seiller  Prive,  Membre  Permanent  du  Conseil  du  Ministere  des  Affaires 
Etrangeres  de  Russie,  Membre  de  I’lnstitut  de  France ; 

Attendu  que  par  des  circonstances  imprevues  le  Tribunal  d’Arbitrage 
ne  put  etre  constitue  definitivement  que  le  1®''  octobre  1903,  les  Arbitres, 
dans  leur  premiere  reunion  du  meme  jour,  en  procedant  conformement 
a TArticle  XXXIV  de  la  Convention  du  29  juillet  1899,  a la  nomina- 
tion du  President  du  Tribunal,  ont  elu  comme  tel  Son  Excellence  Mon- 
sier  Mourawieff,  Ministre  de  la  Justice; 

Et  attendu  qu’en  vertu  des  Protocoles  de  Washington  du  7 mai  1903, 
les  susmentionnes  Arbitres,  reunis  en  Tribunal  d’Arbitrage,  legalement 
constitue,  devaient  decider,  conformement  a I’Article  I des  Protocoles 
de  Washington  du  7 mai  1903,  ce  qui  suit : 

“La  question  de  savoir,  si  I’Allemagne,  la  Grande-Bretagne  et  I’ltalie 
ont,  ou  n’ont  pas,  droit  a un  traitement  preferentiel  ou  separe  pour  le 
paiement  de  leurs  reclamations  contre  le  Venezuela  et  la  trancher  sans 
appel ; 

Le  Venezuela  ayant  consent!  a mettre  de  cote  30  pour  cent  de  revenu 
des  douanes  de  La  Guayra  et  de  Puerto  Cabello  pour  le  paiement  des 
reclamations  de  toutes  les  nations  contre  le  Venezuela,  le  Tribunal  de 
La  Haye  decidera  comment  ces  recettes  seront  reparties  entre  les 
Puissances  qui  ont  effectue  le  blocus  d’une  part,  et  les  autres  Puis- 
sances creancieres  d’autre  part,  et  sa  decision  sera  sans  appel. 

Si  un  traitement  preferentiel  ou  separe  n’est  pas  accorde  aux  Puis- 
sances bloquantes,  le  Tribunal  decidera  comment  les  susdits  revenus 
seront  repartis  entre  toutes  les  Puissances  creancieres ; et  les  Parties 
conviennent  que,  dans  ce  cas,  le  Tribunal  prendra  en  consideration, 
par  rapport  aux  paiements  a effectuer  au  moyen  de  30  pour  cent  tout 
droit  de  preference  ou  de  gage  sur  les  revenus  dont  serait  titulaire 
I’une  quelconque  des  Puissances  creancieres,  et  le  Tribunal  tranchera 
en  consequence  la  question  de  repartition  de  faqon  qu’aucune  Puis- 
sance ne  jouisse  d’un  traitement  preferentiel,  et  sa  decision  sera  sans 
appel.” 

Attendu  que  les  susmentionnes  Arbitres,  ayant  examine  avec  im- 
partialite  et  soin  tous  les  documents  et  actes,  presentes  au  Tribunal 
d’Arbitrage  par  les  Agents  des  Puissances  interessees  dans  ce  litige,  et 
ayant  entendu  avec  la  plus  grande  attention  les  plaidoiries  orales, 
prononcees  devant  le  Tribunal,  par  les  Agents  et  Conseils  der  Parties 
en  litige ; 

Considerant  que  le  Tribunal,  en  examinant  le  present  litige  devait 
se  regler  d’apres  les  principes  du  droit  international  et  les  notions  de  la 
justice ; 

Considerant  que  les  differents  Protocoles  signes  a Washington  depuis 
le  13  fevrier  1903  et  particulierement  les  Protocoles  du  7 mai  1903, 
dont  la  force  obligatoire  ne  saurait  etre  mise  en  doute,  forment  la  base 
legale  de  la  sentence  arbitrale ; 

Considerant  que  le  Tribunal  d’Arbitrage  n’est  nullement  competent 
ni  pour  contester  la  juridiction  des  commissions  mixtes  arbitrales, 
etablies  a Caracas,  ni  pour  juger  leur  action ; 


THE  VENEZUELAN  PREFERENTIAL  CASE 


443 


Considerant  que  le  Tribunal  ne  se  reconnait  absolument  aucune 
competence  pour  porter  un  jugement  sur  le  caractere  ou  la  nature  des 
operations  militaires  entreprises  par  I’Allemagne,  la  Grande-Bretagne 
et  ITtalie  contre  le  Venezuela; 

Considerant  que  le  Tribunal  d’ Arbitrage  n’etait  non  plus  appele  a 
decider  si  les  trois  Puissances  bloquantes  avaient  epuise  dans  leur 
conflit  avec  le  Venezuela  tous  les  moyens  pacifiques,  afin  de  prevenir 
I’emploi  de  la  force ; 

Qu’il  peut  seulement  constater  le  fait  que  depuis  1901  le  Gouverne- 
ment  du  Venezuela  refusait  categoriquement  de  soumettre  son  conflit 
avec  I’AHemagne  et  la  Grande-Bretagne  a I’arbitrage,  propose  a 
plusieurs  reprises  et  tout  specialement  par  la  Note  du  Gouvernement 
Allemand  du  16  juillet  1901 ; 

Considerant  qu’apres  la  guerre  entre  TAllemagne,  la  Grande- 
Bretagne  et  ITtalie  d’une  part,  et  le  Venezuela  d’autre  part,  aucun 
traite  formel  de  paix  no  fut  conclu  entre  les  Puissances  belligerantes ; 

Considerant  que  les  Protocoles,  signes  a Washington  le  13  fevrier 
1903,  n’avaient  point  regie  toutes  les  questions  en  litige  entre  les  Parties 
belligerantes,  en  laissant  particulierement  ouverte  la  question  de  la 
repartition  des  recettes  des  douanes  de  La  Guayra  et  de  Puerto 
Cabello ; 

Considerant  que  les  Puissances  belligerantes,  en  soumettant  la  ques- 
tion du  traitement  preferentiel  par  rapport  a ces  recettes  au  jugement 
du  Tribunal  d’ Arbitrage,  sont  tombees  d’accord  que  la  sentence  ar- 
bitrale  doit  servir  a completer  cette  lacune  et  a assurer  le  retablissement 
definitif  de  la  paix  entre  elles; 

Considerant  d’une  part  que  les  operations  de  guerre  des  trois  grandes 
Puissances  europeenes  contre  le  Venezuela  ont  cesse  avant  qu’elles 
eussent  regu  satisfaction  sur  toutes  leurs  reclamations,  et  d’autre  part, 
que  la  question  du  traitement  preferentiel  a ete  soumise  a I’arbitrage, 
le  Tribunal  doit  reconnaitre  dans  ces  faits  un  temoignage  precieux  en 
faveur  du  grand  principe  de  I’arbitrage  dans  toutes  les  phases  des  con- 
flits  internationaux ; 

Considerant  que  les  Puissances  bloquantes,  en  admettant  I’adhesion 
aux  stipulations  des  Protocoles  du  13  fevrier  1903  des  autres  Puis- 
sances ayant  des  reclamations  a I’egard  du  Venezuela,  ne  pouvaient 
evidemment  avoir  I’intention  de  renoncer  ni  a leurs  droits  acquis,  ni 
a leur  position  privilegiee  de  fait ; 

Considerant  que  le  Gouvernement  du  Venezuela  dans  les  Protocoles 
du  13  fevrier  (article  I)  reconnait  lui-meme  "en  principe  le  bien-fonde 
des  reclamations,”  presentees  contre  lui  par  les  Gouvernements 
d’Allemagne,  de  Grande-Bretagne  et  d’ltalie ; 

Tandis  que  dans  les  Protocoles,  signes  entre  le  Venezuela  et  les 
Puissances  dites  neutres  ou  pacifiques,  le  bien-fonde  des  reclamations 
de  ces  dernieres  n’a  point  ete  reconnu  en  principe ; 

Considerant  que  le  Gouvernement  du  Venezuela  jusqu’a  la  fin  de 
janvier  1903  ne  protestait  nullement  contre  la  pretention  des  Puissances 
bloquantes  d’exiger  des  gages  speciaux  pour  le  reglement  de  leurs 
reclamations ; 


444 


ORIGINAL  TEXTS 


Considerant  que  le  Venezuela  lui-meme  faisait  toujours  durant  les 
negociations  diplomatiques  une  distinction  formelle  entre  “les  Puis- 
sances alliee,”  et  “les  Puissances  neutres  ou  pacifiques” ; 

Considerant  que  les  Puissances  neutres,  qui  reclament  actuellement 
devant  le  Tribunal  d’ Arbitrage  I’egalite  dans  la  repartition  de  30  pour 
cent  des  recettes  des  douanes  de  La  Guayra  et  de  Puerto  Cabello,  n’ont 
pas  proteste  contre  la  pretention  des  Puissances  bloquantes  a un 
traitement  preferentiel,  ni  au  moment  de  la  cessation  de  la  guerre 
contre  le  Venezuela,  ni  immediatement  apres  la  signature  des  Proto- 
coles du  13  fevrier  1903  ; 

Considerant  qu’il  resulte  des  negociations  diplomatiques,  ayant  abouti 
a la  signature  des  Protocoles  du  13  fevrier.  et  7 mai  1903,  que  les 
Gouvemements  Allemand  et  Britannique  insistaient  constamment  sur 
ce  qu’il  leur  soit  donne  des  garanties  pour  “a  sufficient  and  punctual  dis- 
charge of  the  obligations’"  (Memorandum  Britannique  du  23  decembre 
1902,  communique  au  Gouvernement  des  Etats-Unis  d’Amerique)  ; 

Considerant  que  le  Plenipotentiaire  du  Gouvernement  du  Venezuela 
accepta  ces  reserves  de  la  part  des  Puissances  alliees  sans  la  moindre 
protestation ; 

Considerant  que  le  Gouvernement  du  Venezuela  ne  s’engagea,  qu’a 
r%ard  des  Puissances  alliees,  a offrir  des  garanties  speciales  pour 
I’accomplissement  des  engagements  pris  par  lui ; 

Considerant  que  la  bonne  foi  qui  doit  regir  les  relations  inter- 
nationales  impose  le  devoir  de  constater  que  les  mots  “all  claims’"  em- 
ployes par  le  Representant  du  Gouvernement  du  Venezuela  dans  ses 
p>ourparlers  avec  les  Representants  des  Puissances  alliees  (Statement 
left  in  the  hands  of  Sir  Michael  H.  Herbert  by  Mr.  H.  Bowen  of  23 
January,  1903),  ne  pouvaient  viser  que  les  reclamations  de  ces  dernieres 
et  ne  pouvaient  se  rapporter  qu’a  celles-ci ; 

Considerant  que  les  Puissances  neutres,  n’ayant  pris  aucune  part 
aux  operations  de  guerre  contre  le  Venezuela,  pourraient  sous  quelque 
rapport  profiter  des  circonstances  creees  par  ces  operations,  sans  toute- 
fais  acquerir  des  droits  nouveaux ; 

Considerant  que  les  droits  acquis  des  Puissances  neutres  ou  pacifiques 
a regard  du  Venezuela  restent  a I’avenir  absolument  intacts  et  garantis 
par  des  arrangements  internationaux  respectifs ; 

Considerant  qii’en  vertu  de  I’Article  V des  Protocoles  du  7 mai  1903, 
signes  a Washington,  le  Tribunal  “decidera  aussi  suivant  la  disposition 
generale,  formulee  par  I’Article  LVII  de  la  Convention  internationale 
du  29  juillet  1899,  comment,  quand  et  par  qui  les  frais  du  present  ar- 
bitrage seront  payes” ; 

Par  ces  motifs : 

Le  Tribunal  d’Arbitrage  decide  et  prononce  a I’unanimite  ce  qui 
suit : 

1°.  L’Allemagne,  la  Grande-Bretagne  et  I’ltalie  ont  droit  a un  traite- 
ment preferentiel  pour  le  paiement  de  leurs  reclamations  contre  le 
Venezuela ; 

2®.  Le  Venezuela  ayant  consent!  a mettre  de  cote  30  pour  cent  du 


THE  VENEZUELAN  PREFERENTIAL  CASE  445 

revenu  des  douanes  de  La  Guayra  et  de  Puerto  Cabello  pour  le 
paiement  des  reclamations  de  toutes  les  nations  contre  le  Venezuela, 
les  trois  Puissances  susmentionees  ont  un  droit  de  preference  au 
pciiement  de  leurs  reclamations  au  moyen  de  ces  30  pour  cent  des 
recettes  des  deux  ports  venezueliens  sus-indiques ; 

3°.  Chaque  Partie  en  litige  supporte  ses  propres  frais  et  une  part 
egale  des  frais  du  Tribunal. 

Le  Gouvernement  des  Etats-Unis  d’Amerique  est  charge  de  veiller  a 
I’execution  de  cette  derniere  disposition  dans  le  delai  de  trois  mois. 

Fait  a la  Haye,  dans  I’Hotel  de  la  Cour  Permanente  d’Arbitrage,  le 
22  fevrier  1904. 

(Signe)  N.  Mourawieff 
( “ ) H.  Lammasch 

( “ ) Martens 


Agreement  for  Arbitration,  May  ipoj^ 

Von  dem  Kaiserlich  Deutschen  Gesandten  Herrn  Freiherrn  Speck 
von  Sternburg  als  Bevollmachtigten  der  Kaiserlich  Deutschen 
Regienmg  und  dem  Gesandten  der  Vereinigten  Staaten  von  Amerika 
Herrn  Herbert  W.  Bowen  als  Bevollmachtigten  der  Venezolanischen 
Regienmg  ist  zur  Ausfiihrung  der  Artikel  3 und  4 des  deutsch- 
venezolanischen  Protokolls  vom  13.  Februar  1903  nachstehendes 
Abkommen  fiber  die  zur  Feststellung  der  deutschen  Reklamationen 
berufene  gemischte  Kommission  unterzeichnet  worden ; 

Artikel  I 

Die  von  der  Kaiserlich  Deutschen  und  der  Venezolanischen 
Regierung  zu  ernennenden  Mitglieder  der  gemischten  Kommission 
treten  am  1.  Juni  1903  in  Caracas  zusammen.  Der  von  dem  Prasi- 
denten  der  Vereinigten  Staaten  von  Amerika  zu  ernennende  Obmann 
tritt  sobald  als  moglich,  spatestens  aber  am  1.  Juni  1903  in  die  Kom- 
mission ein. 

Der  Obmann  ist  zu  den  Verhandlungen  und  Entscheidungen 
zuzuziehen,  sobald  das  deutsche  und  das  venezolanische  Mitglied  sich 
fiber  eine  Frage  nicht  einigen  kdnnen  oder  es  sonst  ffir  angezeigt 
erachten.  Bei  Zuziehung  des  Obmanns  ffihrt  dieser  den  Vorsitz. 

Wenn  nach  dem  Zusammentritte  der  Kommission  der  Obmann  oder 
eines  der  beiden  anderen  Mitglieder  in  Wegfall  kommt,  so  soil  dessen 
Nachfolger  sofort  in  derselben  Weise  wie  das  weggefallene  Mitglied 
ernannt  werden. 

Das  deutsche  und  das  venezolanische  Mitglied  haben  zu  ihrer  Un- 
terstfitzung  bei  den  Kommissionsarbeiten  je  einen  der  deutschen  und 
der  spanischen  Sprache  machtigen  Sekretar  zu  ernennen. 


^Official  records  of  the  Imperial  German  Embassy  at  Washington,  D.  C. 


446 


ORIGINAL  TEXTS 


Artikel  II 

Vor  Beginn  ihrer  Thatigkeit  sollen  der  Obmann  und  die  beiden 
anderen  Mitglieder  in  feierlicher  Weise  einen  Eid  oder  eine  eides- 
stattliche  Versicherung  dahin  ableisten,  dass  sie  die  ihnen  unter- 
breiteten  Reklamationen  sorgfiiltig  priifen  und  unparteiisch  nach  den 
Grundsatzen  der  Gerechtigkeit  sowie  nach  den  Bestimmungen  des 
Protokolls  vom  13.  Februar  1903  und  des  vorliegenden  Abkommens 
entscheiden  werden.  Die  Ableistung  des  Eides  oder  der  eidesstatt- 
lichen  Versicherung  ist  durch  die  Protokolle  der  Kommission  fest- 
zustellen. 

Die  Entscheidungen  der  Kommission  tiber  die  Reklamationen  sollen 
auf  der  Grundlage  vollkommener  Billigkeit  sowie  ohne  Riicksicht  auf 
Einwendungen  technischer  Art  oder  auf  die  Bestimmungen  der 
Landesgesetzgebung  erfolgen.  Sie  sind  schriftlich  in  deutscher  und 
spanischer  Sprache  abzufassen.  Die  zuerkannten  Entschadigungsbe- 
trage  miissen  angegeben  werden  als  zahlbar  in  deutschem  Golde  oder 
dem  Gegenwert  in  Silber,  wie  sich  solcher  zur  Zeit  der  effektiven 
Zahlung  in  Caracas  stellen  wird. 

Artikel  III 

Die  Reklamationen  sind  bei  der  Kommission  von  dem  Kaiserlich 
Deutschen  Gesandten  in  Caracas  bis  zum  1.  Juli  1903  anzumelden. 
Diese  Frist  kann  von  der  Kommission  in  geeigneten  Fallen  angemessen 
verlangert  werden.  Die  Kommission  hat  iiber  die  einzelnen  Reklama- 
tionen binnen  sechs  Monaten  nach  deren  Anmeldung  und  sofern  das 
deutsche  und  das  venezolanische  Mitglied  sich  nicht  einigen,  binnen 
sechs  Monaten  nach  Zuziehung  des  Obmanns  zu  entscheiden. 

Die  Kommission  ist  verpflichtet,  vor  der  Entscheidung  das  ihr  von 
dem  Kaiserlich  Deutschen  Gesandten  in  Caracas  und  der  Venezo- 
lanischen  Regierung  vorgelegte  Beweismaterial  sowie  miindliche  oder 
schriftliche  Ausfiihrungen  etwaiger  Bevollmachtigten  des  Gesandten 
oder  der  Regienmg  entgegenzunehmen  und  einer  sorgfaltigen 
Prufung  zu  unterziehen. 

t)ber  die  Verhandlungen  der  Kommission  haben  die  in  Artikel  1 
Absatz  4 bezeichneten  Sekretare  genaue  Protokolle  in  zwei  gleichlau- 
tenden  Ausfertigp.mgen  zu  fiihren,  die  von  ihnen  und  den  an  der 
Verhandlung  beteiligten  Mitgliedem  der  Kommission  zu  unter- 
zeichnen  sind.  Nach  Beendigung  der  Kommissionsarbeiten  ist  je 
eine  Ausfertigung  dieser  Protokolle  der  Kaiserlich  Deutschen  und  der 
Venezolanischen  Regierung  zur  Verfiigung  zu  stellen. 

Artikel  IV 

Soweit  nicht  die  vorstehenden  Artikel  besondere  Bestimmungen 
enthalten,  kann  die  Kommission  selbst  das  Verfahren  in  der  ihr 
geeignet  scheinenden  Weise  regeln.  Insbesondere  ist  sie  befugt, 
selbst  die  Erklarungen  der  Reklamanten  oder  ibrer  etwaigen  Bevoll- 
machtigten entgegenzunehmen  und  die  erforderlichen  Beweise  zu 
erheben. 


THE  VENEZUELAN  PREFERENTIAL  CASE 


447 


Artikel  V 

Der  Obmann  bezieht  fiir  seine  Miihewaltung  und  Auslagen  eine 
angemessene  Entschadigung,  die  ebenso  wie  etwaige  gemeinsame 
Kosten  der  Kommission  von  der  Kaiserlich  Deutschen  und  der 
Venezolanischen  Regierung  zu  gleichem  Anteile  getragen  wird. 

Die  Entschadigungen,  die  den  beiden  anderen  Mitgliedern  und  den 
Sekretaren  der  Kommission  zu  gewahren  sind,  werden  von  der 
Regierung  getragen,  von  deren  Seite  diese  Personen  bestellt  sind. 
Ebenso  tragt  jede  Regierung  die  ihr  sonsst  etwa  erwachsenden 
eigenen  Kosten. 

So  geschehen  in  doppelter  Ausfertigung  in  deutscher  und  englischer 
Sprache  zu  Washington  am  siebten  Mai.  Eintausend  neunhundert 
und  drei. 

(L.  S.)  (gez.)  Sternburg 

(L.  S.)  (gez.)  Herbert  W.  Bowen 


Protocol  of  February  jj,  /poj,  between  Germany  and  Venezuela  for 
the  Adjustment  of  Claims^ 

Protokoll  Zwischen  dem  Kaiserlich  Deutschen  Ausserordentlichen 
Gesandten  und  bevollmachtigten  Minister  Herrn  Freiherrn  Speck 
von  Sternburg  als  Bevollmachtigten  der  Kaiserlich  Deutschen 
Regierung  und  dem  Gesandten  der  Vereinigten  Staaten  von  Amerika 
Herrn  Bowen  als  Bevollmachtigten  der  Venezolanischen  Regierung 
ist  zur  Beilegung  der  zwischen  Deutschland  und  Venezuela  entstan- 
denen  Streitigkeiten  nachstehendes  Protokoll  abgeschlossen  worden : 

Artikel  I 

Die  Venezolanische  Regierung  erkennt  im  Prinzip  die  von  der 
Kaiserlich  Deutschen  Regierung  erhobenen  Reklamationen  deutscher 
Untertanen  als  berechtigt  an. 


Artikel  II 

Die  deutschen  Reklamationen  aus  den  venezolanischen  Biirger- 
kriegen  von  1898  bis  1900  belaufen  sich  auf  1,718,815.67  Bolivares. 
Die  Venezolanische  Regierung  verpflichtet  sich  von  diesem  Betrag  Pf. 
Sterling  5,500=  137,500  Bolivares  (Fiinftausend  fiinfhundert  Pfund 
Sterling  = Einhundert  sieben  und  dreissig  tausend  fiinfhundert  Boli- 
vares) sofort  bar  zu  bezahlen  und  zur  Tilgung  des  Restes  funf  am  15 
Marz,  15  April,  15  Mai,  15  Juni  und  15  Juli  1903  an  den  Kaiserlich 
Deutschen  Gesandten  in  Caracas  zahlbare  Wechsel  iiber  entsprechende 
Teilbetriige  einzulosen,  die  Herr  Bowen  sofort  ausstellen  und  Herrn 
Freiherrn  von  Sternburg  iibergeben  wird.  Sollte  die  Venezolanische 


^Official  records  of  the  Imperial  German  Embassy  at  Washington,  D.  C. 


448 


ORIGINAL  TEXTS 


Regierung  diese  Wechsel  nicht  einlosen,  so  soil  die  Zahlung  aus  den 
Zolleinkiinften  von  La  Guaira  und  Puerto  Cabello  erfolgen,  und  soil 
die  Zollverwaltung  in  den  beiden  Hafen  bis  zur  vollstandigen  Tilgung 
der  erwahnten  Schulden  belgischen  Zollbeamten  ubertragen  werden. 

Artikel  III 

Die  in  den  Artikeln  II  und  VI  nicht  erwahnten  deutschen  Reklama- 
tionen,  insbesondere  die  Reklamationen,  welche  aus  dem  gegenwartigen 
venezolanischen  Biirgerkriege  herriihren,  femer  die  Anspriiche  der 
Deutschen  Grossen  Venezuela  Eisenbahn-Gesellschaft  gegen  die 
Venezolanische  Regierung  wegen  Beforderung  von  Personen  und 
Giitern  sowie  die  aus  dem  Bau  eines  Schlachthauses  in  Caracas  entstan- 
denen  Forderungen  en  des  Ingenieurs  Karl  Henckel  in  Hamburg  und 
der  Aktiengesellschaft  fiir  Beton-und  Monierban  in  Berlin  werden 
einer  gemischten  Kommission  iiberwiesen. 

Diese  Kommission  hat  sowohl  iiber  materielle  Berechtigung  der 
einzelnen  Forderungen  wie  iiber  deren  Hohe  zu  entscheiden.  Bei  den 
Reklamationen  wegen  widerrechtlicher  Beschadigung  oder  Wegnahme 
von  Eigentum  erkennt  iiberdies  die  Venezolanische  Regierung  ihre 
Haftpflicht  im  Prinzip  an,  dergestalt,  dass  die  Kommission  nicht  iiber 
die  Frage  der  Haftpflicht,  sondem  lediglich  iiber  die  Widerrechtlich- 
keit  der  Beschadigung  oder  Wegnahme  sowie  iiber  die  Hohe  der 
Entschadigung  zu  befinden  hat. 

Artikel  IV 

Die  im  Artikel  III  erwahnte  gemischte  Kommission  hat  ihren  Sitz 
in  Caracas.  Sie  setzt  sich  zusammen  aus  je  einem  von  der  Kaiserlich 
Deutschen  und  der  Venezolanischen  Regierung  zu  ernennenden  Mit- 
glied.  Die  Emennung  hat  bis  zum  1,  Mai  1903  zu  erfolgen.  Soweit 
sich  die  beiden  Mitglieder  iiber  die  erhobenen  Anspriiche  einigen,  ist 
ihre  Entscheidung  als  entgiiltig  anzusehen,  soweit  eine  Einigung  unter 
ihnen  nicht  zu  stande  kommt,  ist  zur  Entscheidung  ein  Obmann 
zuzuziehen,  der  von  dem  Prasidenten  der  Vereinigten  Staaten  von 
Amerika  ernannt  wird. 

Artikel  V 

Zur  Befriedigung  der  im  Artikel  III  bezeichneten  Reklamationen 
sowie  der  gleichartigen  Forderungen  anderer  Machte  wird  die  Vene- 
zolanische Regierung  vom  1 Marz  1903,  ab  monatlich  30%  der 
Zolleinkunfte  von  La  Guaira  und  Puerto  Cabello  unter  Ausschluss 
jeder  anderen  Verfiigung  dem  Vertreter  der  Bank  von  England  in 
Caracas  iiberweisen.  Sollte  die  Venezolanische  Regierung  dieser 
Verpflichtung  nicht  nachkommen,  so  soil  die  Zollverwaltung  in  den 
beiden  Hafen  bis  zur  vollstandigen  Befriedigung  der  vorstehend 
erwahnten  Forderungen  belgischen  Zollbeamten  ubertragen  werden. 

Alle  Streitfragen  in  Ansehung  der  Verteilung  der  im  Absatz  1 
bezeichneten  Zolleinkunfte  sowie  in  Ansehung  des  Rechts  Deutsch- 
lands,  Gross-Britanniens  und  Italiens  auf  gesonderte  Befriedigung  ihrer 


THE  VENEZUELAN  PREFERENTIAL  CASE 


449 


Reklamationen  sollen  in  Ermangelung  eines  anderweitigen  Abkommens 
durch  den  standigen  Schiedshof  im  Haag  entschieden  werden.  An 
dem  Schiedsverfahren  kdnnen  sich  alle  anderen  interessierten  Staaten 
den  genannten  drei  Machten  gegenuber  als  Partei  beteiligen. 

Artikel  VI 

Die  Venezolanische  Regierung  verpflichtet  sich,  die  zum  grossten  Teil 
in  deutschen  Handen  befindliche  5 prozentige  venezolanische  Anleihe 
von  1896  zugleich  mit  ihrer  gesamten  auswartigen  Schuld  in  befriedi- 
gender  Weise  neu  zu  regeln.  Bei  dieser  Regelung  sollen  die  fiir  den 
Schuldendienst  zu  verwendenden  Staatseinkiinfte  unbeschadet  der  dies- 
beziiglich  bereits  bestehenden  Verpflichtungen  bestimmt  werden. 

Artikel  VII 

Die  von  den  deutschen  Seestreitkraften  weggenommenen  venezo- 
lanischen  Kriegs-und  Handelsfahrzeuge  werden  in  dem  Zustande,  in 
dem  sie  sich  gegenwartig  befinden,  der  Venezolanischen  Regierung 
zuriickgegeben.  Aus  der  Wegnahme  dieser  Schiffe  wie  aus  deren 
Aufbewahrung  konnen  keine  Entschadigungsanpriiche  hergeleitet 
werden.  Auch  wird  ein  Ersatz  fiir  Beschadigung  oder  Vernichtung 
der  Schiffe  nicht  gewahrt. 

Artikel  VIII 

Nach  Unterzeichnung  dieses  Protokolles  soil  die  iiber  die  venezo- 
lanischen Hafen  verhangte  Blockade  gemeinsam  mit  den  Regierungen 
Gross-Britanniens  und  Italiens  aufgehoben  werden.  Auch  werden  die 
diplomatischen  Beziehungen  zwischen  der  Kaiserlich  Deutschen  und 
der  Venezolanischen  Regierung  wieder  aufgenommen. 

So  geschehen  in  doppelter  Ausfertigung  in  deutscher  und  englischer 
Sprache  zu  Washington  am  dreizehnten  Februar  Eintausand  neunhun- 
dert  und  drei. 

(L.  S.)  (gez.)  Herbert  W.  Bowen 
(L.  S.)  (gez.)  H.  Sternburg 


Protocol  of  February  z/,  /poj,  between  the  United  States  of  America 
and  Venezuela  for  the  Adjustment  of  Claims^ 

Los  Estados  Unidos  de  America  y la  Republica  de  Venezuela,  por 
medio  de  sus  representantes,  John  Hay,  Secretario  de  Estado  de  los 
Estados  Unidos  de  America,  y Herbert  W.  Bowen,  Plenipotenciario 
de  la  Republica  de  Venezuela,  han  convenido  en  el  siguiente  protocolo, 
que  han  firmado. 

Articulo  I 

Todas  las  reclamaciones  poseidas  por  ciudadanos  de  los  Estados 
Unidos  de  America  contra  la  Republica  de  Venezuela,  que  no  hayan 

^United  States  Treaty  Series,  No.  420. 


450 


ORIGINAL  TEXTS 


sido  arregladas  por  la  via  diplomatica  6 por  arbitraje  entre  los  dos 
Gobiernos,  y que  hubieren  sido  presentadas  por  el  Departamento  de 
Estado  de  los  Estados  Unidos  6 por  su  Legacion  en  Caracas  a la  Comi- 
sion  abajo  mencionada,  seran  examinadas  y decididas  por  una  Comi- 
sion  Mixta,  que  celebrara  sus  sesiones  en  Caracas,  y que  se  compondra 
de  dos  miembros,  uno  de  los  cuales  sera  nombrado  por  el  Presidente 
de  los  Estados  Unidos,  y el  otro  por  el  Presidente  de  Venezuela. 

Se  conviene  en  que  tercero  en  discordia  podra  ser  nombrado  por 
la  Reina  de  los  Paises  Bajos.  Si  uno  de  dichos  comisionados  6 el  ter- 
cero en  discordia  dejare  de  ejercer  sus  funciones,  sera  nombrado  en  el 
acto  su  sucesor  del  mismo  modo  que  el  antecesor  de  este.  Dichos  comi- 
sionados y tercero  en  discordia  deben  ser  nombrados  antes  del  dia 
primero  de  mayo  de  1903. 

Los  comisionados  y el  tercero  en  discordia  se  reuniran  en  la  ciudad 
de  Caracas  el  dia  primero  de  junio  de  1903.  El  tercero  en  discordia 
presidira  sus  deliberaciones,  y tendra  facultad  para  dirimir  cualquier 
cuestion  sobre  la  que  no  puedan  avenirse  los  comisionados.  Antes  de 
empezar  a ejercer  las  funciones  de  su  cargo,  los  comisionados  y el 
tercero  en  discordia  prestaran  solemne  juramento  de  examinar  con 
cuidado,  y de  decidir  imparcialmente,  con  arreglo  a la  justicia  y a las 
estipulaciones  de  esta  convencion,  todas  las  reclamaciones  que  se  les 
sometieren,  y tales  juramentos  se  asentaran  en  su  libro  de  actas.  Los 
comisionados,  6 en  caso  de  que  estos  no  puedan  avenirse,  el  tercero 
cn  discordia  decidira  todas  las  reclamaciones  con  arreglo  absoluto  a 
la  equidad,  sin  reparar  en  objeciones  tecnicas,  ni  en  las  disposiciones 
de  la  legislacion  local. 

Las  decisiones  de  la  comision,  y en  caso  de  su  desavenencia,  las  del 
tercero  en  discordia,  seran  definitivas  y concluyentes.  Se  estenderan 
por  escrito.  Todas  las  cantidades  falladas  seran  pagaderas  en  moneda 
de  oro  de  los  Estados  Unidos  6 en  su  equivalente  en  plata. 

Articulo  II 

Los  comisionados  6 el  tercero  en  discordia,  segun  el  caso,  investiga- 
ran  y decidiran  tales  reclamaciones  con  arreglo  unicamente  a las  prue- 
bas  6 informes  suministrados  por  los  respectivos  Gobiernos,  6 en 
nombre  de  estos.  Tendran  obligacion  de  recibir  y considcrar  todos  los 
documentos  6 exposiciones  escritas  que  les  fueren  presentadas  por  los 
respectivos  Gobiernos,  6 en  su  nombre,  en  apoyo  6 en  refutacion  de 
cualquiera  reclamacion,  y de  oir  los  argumentos  orales  6 escritos  que 
hiciere  el  agente  de  cada  Gobiemo  sobre  cada  reclamacion.  En  caso 
de  que  dejen  de  avenirse  sus  opiniones  sobre  cualquiera  reclamacion, 
decidira  el  tercero  en  discordia. 

Cada  reclamacion  se  presentara  formalmente  a los  comisionados  den- 
tro  de  treinta  dias  contados  desde  la  fecha  de  su  primera  reunion,  a 
menos  que  los  comisionados  6 el  tercero  en  discordia  prorrog^en,  en 
algun  caso,  por  un  termino  que  no  exceda  de  tres  meses,  el  periodo 
concedido  para  presentar  la  reclamacion.  Los  comisionados  tendran 
obligacion  de  examinar  y decidir  todas  las  reclamaciones  dentro  de 


THE  VENEZUELAN  PREFERENTIAL  CASE 


451 


seis  meses  contados  desde  el  dla  en  que  hubieren  sido  formalmente 
presentadas  por  primera  vez,  y en  caso  de  su  desavenencia,  examinara 
y decidira  el  tercero  en  discordia  dentro  de  un  periodo  correspondiente 
contado  desde  la  fecha  de  tal  desavenencia. 

Articulo  III 

Los  comisionados  y el  tercero  en  discordia  llevaran  un  registro  ex- 
acto  de  todas  sus  deliberaciones  y acuerdos.  Para  ese  objeto,  cada 
comisionado  nombrara  un  secretario  versado  en  el  idioma  de  cada  pais 
para  que  le  ayude  en  el  despacho  de  los  negocios  que  pendieren  ante 
la  comision.  Salvo  las  estipulaciones  del  presente  protocolo,  toda  cues- 
tion  de  procedimiento  se  remitira  a la  resolucion  de  la  comision,  6 en 
caso  de  su  desavenencia,  a la  del  tercero  en  discordia. 

Articulo  IV 

Una  retribucion  equitativa  sera  pagada  por  las  partes  contratantes, 
en  partes  iguales,  a los  comisionados  y al  tercero  en  discordia  por  sus 
servicios  y gastos,  y tambien  se  satisfaran  de  la  misma  manera,  los 
demas  gastos  del  arbitraje. 

Articulo  V' 

Con  el  fin  de  pagar  el  importe  total  de  las  reclamaciones  que  se 
hayan  de  decidir  de  la  manera  que  queda  dicha,  y otras  reclamaciones 
de  ciudadanos  6 subditos  de  otros  Estados,  el  Gobierno  de  Venezuela 
reservara,  y no  enajenara  para  ningun  otro  objeto  (empezando  desde 
el  mes  de  marzo  de  1903)  un  treinta  por  ciento,  en  pagos  mensuales, 
de  las  rentas  aduanales  de  la  Guaira  y Puerto  Cabello,  y el  dinero  asi 
reservado  sera  distribuido  con  arreglo  al  fallo  del  Tribunal  de  la 
Haya. 

En  caso  de  que  no  se  cumpla  el  susodicho  convenio,  empleados  bel- 
gas  quedaran  encargados  del  cobro  de  los  derechos  de  aduana  de  am- 
bos  puertos,  y los  administraran  hasta  que  se  hayan  cumpeido  las  obli- 
gaciones  del  Gobierno  de  Venezuela  respecto  de  las  referidas  reclama- 
ciones. La  remision  al  Tribunal  de  la  Haya  de  la  cuestion  arriba 
expuesta  sera  objeto  de  un  protocolo  separado. 

Articulo  VI 

Todas  las  sumas  falladas  a favor  de  ciudadanos  de  los  Estados 
Unidos,  que  no  se  hayan  satisfecho,  seran  pagadas  con  puntualidad, 
conforme  a las  disposiciones  de  los  respectivos  fallos. 

Washington,  D.  C.  February  17,  1903. 

John  Hay  [seal] 

Herbert  W.  Bowen  [seal] 


THE  JAPANESE  HOUSE  TAX  CASE 


Award  of  the  Tribunal,  May  22, 

Attendu  qu'aux  termes  de  Protocoles,  signes  a Tokyo  le  28  aout 
1902,  un  desaccord  s’est  produit,  entre  le  Gouvemement  du  Japon 
d’une  part  et  les  Gouvemements  d’Allemagne,  de  France  et  de  Grande- 
Bretagne  d’autre  part,  touchant  le  sens  reel  et  la  portee  des  dispositions 
suivantes  des  traites  respectifs  et  autres  eng^ements  existant  entre 
eux,  c’est-a-dire : 

Paragraphe  4 de  1’ Article  XVIII  du  Traite  de  Commerce  et  de 
Navigation  du  4 avril  1896  entre  le  Japon  et  I’Allemagne:  “Sobald 
diese  Einverleibung  erfolgt”  [c’est-a-dire:  quand  les  divers  quartiers 
etrangers  qui  existent  au  Japon  auront  ete  incorpores  dans  les  com- 
munes respectives  du  Japon]  “sollen  die  bestehenden,  zeitlich 
unbegrenzten  Ueberlassungsvertrage,  unter  welchen  jetzt  in  den 
gedachten  Niederlassungen  Grundstiicke  besessen  werden,  bestatigt 
imd  hinsichtlich  dieser  Grundstiicke  sollen  keine  Bedingungen  irgend 
einer  anderen  Art  auferlegt  werden,  als  sie  in  den  bestehenden  Ueber- 
lassungsvertragen  enthalten  sind” ; — et  § 3 de  la  communication  com- 
plementaire  de  meme  date  du  Secretaire  d’Etat  des  Affaires  Etrangeres 
de  I’Empire  d’Allemagne  au  Ministre  du  Japon  a Berlin : “3.  dass,  da 
das  Eigenthum  an  den  im  Artikel  XVIII  des  Vertrages  erwahnten 
Niederlassungsgrundstiicken  dem  Japanischen  Staate  verbleibt,  die 
Besitzer  oder  deren  Rechtsnachfolger  fiir  ihre  Grundstiicke  ausser 
dem  kontraktmassigen  Grundzins  Abgaben  oder  Steuern  irgend 
welcher  Art  nicht  zu  entrichten  haben  werden,”  et  I’alinea  suivant  de 
la  reponse  du  Ministre  du  Japon  de  meme  date  a la  precedente  com- 
munication : “dass  die  darin  unter  Nummer  1 bis  4 zum  Ausdruck 
gebrachten  Voraussetzungen,  welche  den  Erwerb  dinglicher  Rechte  an 
Grundstiicken,  die  Errichtung  von  Waaren  haiisern,  die  Steuerfreiheit 
der  Grundstiicke  in  den  Fremdenniederlassungen  und  die  Erhaltung 
wohlerworbener  Rechte  nach  Ablauf  des  Vertrages  zum  Gegenstande 
haben,  in  alien  Punkten  zutreffend  sind” ; 

Paragraphe  4 de  I’Article  XXI  du  Traite  revise  du  4 aout  1896 
entre  le  Japon  et  la  France:  “Lorsque  les  changements  ci-dessus 

indiques  auront  ete  effectues”  [c’est-a-dire:  lorsque  les  divers  quar- 

tiers etrangers  qui  existent  au  Japon  auront  ete  incorpores  aux  com- 
munes respectives  du  Japon  et  feront  des  lors  partie  du  systeme 
municipal  du  Japon ; et  lorsque  les  autorites  japonais  competentes 
auront  assume  toutes  les  obligations  et  tous  les  devoirs  municipaux, 
et  que  les  fonds  et  biens  municipaux  qui  pourraient  appartenir  a ces 
quartiers  auront  ete  transferes  aux  dites  autorites],  “les  baux  a 
perpetuite  en  vertu  desquels  les  etrangers  possedent  actuellement  des 


* Official  report,  p.  43. 


THE  JAPANESE  HOUSE  TAX  CASE 


453 


proprietes  dans  les  quartiers  seront  confirmes,  et  les  proprietes  de  cette 
nature  ne  donneront  lieu  a aucuns  impots,  taxes,  charges,  contributions 
ou  conditions  quelconques  autres  que  ceux  expressement  stipules  dans 
les  baux  en  question” ; 

Paragraphe  4 de  I’Article  XVIII  du  Traite  revise  du  16  juillet  1894 
entre  le  Japon  et  la  Grande-Bretagne : “When  such  incorporation 
takes  place”  [c’est-a-dire : quand  les  divers  quartiers  etrangers  qui 
existent  au  Japon  auront  ete  incorpores  aux  communes  respectives  du 
Japon],  “existing  leases  in  perpetuity  under  Avhich  property  is  now 
held  in  the  said  settlements  shall  be  confirmed,  and  no  conditions  what- 
soever other  than  those  contained  in  such  existing  leases  shall  be  im- 
posed in  respect  of  such  prop>erty” ; 

Attendu  que  les  Puissances  en  litige  sont  tombees  d’accord  pour 
soumettre  leur  differend  a la  decision  d’un  Tribunal  d’ Arbitrage, 

qu’en  vertu  des  Protocoles  susmentionnes, 

les  Gouvernements  d’Allemagne,  de  France  et  de  Grande-Bretagne 
ont  designe  pour  Arbitre  Monsieur  Louis  Renault,  Ministre  Plenipo- 
tentiaire,  Membre  de  ITnstitut  de  France,  Professeur  a la  Faculte  de 
droit  de  Paris,  Jurisconsulte  du  Departement  des  Affaires  Etrangeres, 
et 

le  Gouvernement  du  Japon  a designe  pour  Arbitre  Son  Excellence 
Monsieur  Itchiro  Motono,  Envoye  Extraordinaire  et  Ministre  Pleni- 
potentiaire  de  Sa  Majeste  I’Empereur  du  Japon  a Paris,  Docteur  en 
droit, 

que  les  deux  Arbitres  sus-nommes  ont  choisi  pour  Surarbitre  Mon- 
sieur Gregers  Gram,  ancien  Ministre  d’Etat  de  Norvege,  Gouvemeur 
de  Province ; 

Attendu  que  le  Tribunal  ainsi  compose  a pour  mission  de  statuer, 
en  dernier  ressort,  sur  la  question  suivante : 

Oui  ou  non,  les  dispositions  des  traites  et  autres  engagements  ci- 
dessus  mentionnes  exemptent-elles  seulement  les  terrains  possedes 
en  vertu  des  baux  perpetuels  concedes  par  le  Gouvernement  Japonais 
ou  en  son  nom, — ou  bien  exemptent-elles  les  terrains  et  les  batiments 
de  toute  nature  construits  ou  qui  pourraient  etre  construits  sur  ces 
terrains, — de  tons  impots,  taxes,  charges,  contributions  ou  conditions 
quelconques  autres  que  ceux  expressement  stipules  dans  les  baux  en 
question  ? 

Attendu  que  le  Gouvernement  Japonais  soutient  que  les  terrains 
seuls  sont,  dans  la  mesure  qui  vient  d’etre  indiquee,  exemptes  du  paie- 
ment  d’impots  et  autres  charges, 

que  les  Gouvernements  d’Allemagne,  de  France  et  de  Grande- 
Bretagne  pretendent,  au  contraire,  que  les  batiments,  construits  sur  ces 
terrains,  jouissent  de  la  meme  exemption, 

Attendu  que,  pour  se  rendre  compte  de  la  nature  et  de  I’etendue  des 
engagements  contractes  de  part  et  d’autre  par  les  baux  a perpetuite, 
il  faut  recourir  a divers  arrangements  et  conventions  intervenus,  sous 
le  regime  des  anciens  traites,  entre  les  autorites  japonaises  et  les 
representants  de  plusieurs  Puissances, 


454 


ORIGINAL  TEXTS 


Attendu  que  de  ces  actes  et  des  stipulations  inserees  dans  les  baux 
il  resulte: 

que  le  Gouvemement  Japonais  avait  consenti  a preter  son  concours 
a la  cr^tion  de  quartiers  etrangers  dans  certaines  villes  et  ports  du 
Japon,  ouverts  aux  ressortissants  d’autres  nations, 
que,  sur  les  terrains  designes  a I’usage  des  etrangers  dans  les 
differentes  localites,  le  Gouvemement  Japonais  a execute,  a ses  frais, 
des  travaux  en  vue  de  faciliter  I’occupation  urbaine, 

que  les  etrangers  n’etant  pas,  d’apres  les  principes  du  droit  japonais, 
admis  a acquerir  la  propriete  de  terrains  situes  dans  le  pays,  le 
Gouvemement  leur  a donne  les  terrains  en  location  a perpetuite, 
que  les  baux  determinent  I’etendue  des  lots  de  terre  loues  et  stipulent 
une  rente  annuelle  fixe,  calculee  a raison  de  I’espace  loue, 
qu’il  fut  convenue  qu’en  principe  les  quartiers  etrangers  resteraient 
en  dehors  du  systeme  municipal  du  Japon,  mais  qu’au  reste,  ils 
n’etaient  pas  soumis  a une  organisation  uniforme, 

qu’il  etait  arrete,  par  voie  de  reglements,  comment  il  serait  pourvu 
aux  diverses  functions  de  Tadministration  et  qu’il  etait  prescrit  que  les 
detenteurs  des  terrains  seraient  tenus  de  subvenir  partiellement  aux 
frais  de  la  municipalite  a I’aide  de  redevances  dont  le  montant  et  le 
mode  de  perception  etaient  determines, 

Attendu  qu’on  s’expliquerait  bien  le  soin  apporte  dans  la  redaction 
des  dits  actes  en  vue  de  preciser  les  obligations  de  toute  nature  incom- 
bant  aux  etrangers  vis  a vis  du  Gouvemement  Japonais,  s’il  etait 
entendu  que  la  rente  annuelle  representat,  non  seulement  le  prix  de  la 
location,  mais  aussi  la  contrepartie  des  impots  dont  les  preneurs  eussent 
ete  redevables  a raison  de  la  situation  creee  a leur  profit  par  les  baux 
et  que,  par  consequent,  ils  n’auraient,  en  cette  qualite,  a supporter  que 
les  impots  et  charges  qui  etaient  expressement  mentionnes  dans  les  dits 
baux, 

Attendu  qu-au  reste,  il  n’est  pas  conteste  que  ce  ne  soit  la  le  veritable 
sens  de  ces  actes,  en  tant  qu’il  s’agit  des  terrains,  mais  que  le  Gouverne- 
ment  Japonais  alleg^e  que  les  baux  n’avaient  pour  objet  que  les 
terrains  nus  et  qu’il  n’admet  pas  que  les  constructions,  elevees  sur  les 
terrains,  fussent  comprises  dans  les  stipulations  sur  lesquelles  I’exemp- 
tion  des  impots  serait  fondee, 

qu’il  a allegue  que  les  terrains  seuls  appartenaient  au  Gouvemement, 
les  constmctions  etant,  au  contraire,  la  propriete  des  preneurs,  et  qu’en 
consequence  I’immunite  dont  il  est  question  ne  pouvait  s’etendre  qu’aux 
immeubles  qui  n’etaient  pas  sortis  du  patrimoine  de  I’Etat, 

Attendu  que,  toutefois,  la  question  qu’il  s’agit  de  decider  est  celle  de 
savoir  si,  au  point  de  vue  fiscal,  les  constructions  elevees  sur  les 
terrains  loues  etaient,  de  commun  accord,  considerees  comme  acces- 
soires  de  ces  terrains,  ou  non,  et  que  a solution  de  cette  question  ne 
depend  pas  de  distinctions  tirees  d’une  pretendue  difference  quant  a 
la  propriete  des  immeubles, 

que  le  Tribunal  ne  saurait  done  s’arreter  a la  discussion  engagee  a ce 
sujet  et  fondee  sur  les  principes  du  droit  civil. 


THE  JAPANESE  HOUSE  TAX  CASE 


455 


Attendu  que  les  terrains  etaient  loues  pour  y construire  des  maisons, 
ce  qui  est  indique,  a la  fois,  par  la  situation  des  immeubles  et  par  la 
nature  des  amenagements  effectues  par  le  Gouvernement  Japonais, 

que  Tobligation  d’eriger  des  batiments  etait,  dans  certaines  localites, 
imposee  sous  peine  de  decheance,  que  les  baux  contenaient  souvent 
une  clause,  aux  termes  de  laquelle  les  batiments,  qui  se  trouveraient 
sur  les  terrains,  deviendraient  la  propriete  du  Gouvernement  Japonais, 
au  cas  ou  le  preneur  aurait  manque  a ses  engagements, 

Attendu  qu’il  faut  admettre  que  les  circonstances  qui  viennent  d’etre 
relatees  offrent  des  arguments  a I’encontre  de  la  pretention  que  le  sol 
et  les  constructions  constituent,  dans  les  relations  entre  les  parties  et 
au  point  de  vue  fiscal,  des  objets  entierement  distincts, 

Attendu  qu’en  intervenant  aux  dits  actes,  le  Gouvernement  du  Japon 
a agi,  non  seulement  en  proprietaire  des  terrains  donnes  en  location, 
mais  aussi  comme  investi  du  pouvoir  souverain  du  pays, 

Attendu  que  la  volonte  des  parties  faisait,  par  consequent,  la  loi  en 
la  matiere  et  que,  pour  etablir  comment  les  actes  ont  ete  reellement 
interpretes,  il  faut  s’en  rapporter  au  traitement  auquel  les  detenteurs 
des  terrains  ont  ete,  au  point  de  vue  des  impots,  soumis,  en  fait,  dans 
les  dififerentes  localites, 

Attendu,  a cet  egard,  qu’il  est  constant  que,  suivant  une  pratique  qui 
n’a  pas  varie  et  qui  a existe  durant  une  longue  serie  d’annees,  non 
seulement  les  terrains  en  question,  mais  aussi  les  batiments  eleves  sur 
ces  terrains,  ont  ete  exemptes  de  tons  impots,  taxes,  charges,  con- 
tributions ou  conditions  autres  que  ceux  expressement  stipules  dans 
les  baux  a perpetuite, 

Attendu  que  le  Gouvernement  du  Japon  soutient,  il  est  vrai,  que  cet 
etat  de  choses,  de  meme  que  I’immunite  fiscale  dont  jouissaient  en 
general  les  etrangers  dans  le  pays,  n’etait  du  qu’a  la  circonstance  que 
les  tribunaux  consulaires  refusaient  de  donner  la  sanction  necessaire 
aux  lois  fiscales  du  pays, 

Attendu  que,  toutefois,  cette  pretention  est  depourvue  de  preuves  et 
qu’il  n’est  pas  meme  allegue  que  le  Gouvernement  Japonais  ait  jamais 
fait,  vis  a vis  des  Gouvernements  d’Allemagne,  de  France  et  de  Grande- 
Bretagne,  des  reserves  a I’effet  de  maintenir  les  droits  qu’il  dit  avoir 
ete  leses, 

que,  bien  qu’il  ait  ete  allegue  que  I’immunite  dont  les  etrangers 
jouissaient,  en  fait,  au  point  de  vue  des  impots,  sous  le  regime  des 
anciens  traites,  etait  generale  et  qu’elle  s’etendait  aux  etrangers 
residant  en  dehors  des  concessions  en  question,  il  resulte  pourtant  des 
renseignements  fournis  au  sujet  de  detenteurs  d’immeubles — terrains 
et  maisons — a Hiogo,  que  ladite  regie  n’a  pas  ete  d’une  application 
universelle, 

que,  dans  tons  les  cas,  la  situation  de  fait  n’est  pas  douteuse,  de 
quelque  fagon  qu’on  I’explique, 

Attendu,  au  point  de  vue  de  I’interpretation  des  dispositions  des 
nouveaux  traites  au  sujet  desquelles  il  y a contestation  entre  les 
Parties, 


456 


ORIGINAL  TEXTS 


que  la  redaction  de  I’article  18  du  traite  entre  la  Grande-Bretagne 
et  le  Japon — traite  anterieur  aux  deux  autres — avait  ete  precedee  de 
propositions  tendant  a mettre  les  etrangers,  detenteurs  de  terrains, 
sur  le  meme  pied  que  les  sujets  japonais,  tant  au  point  de  vue  de  la 
propriete  des  immeubles  qui  leur  avaient  ete  concedes  en  location  que 
pour  ce  qui  concerne  le  paiement  de  taxes  et  d’impots,  mais  qu’on  est 
ensuite  tombe  d’accord  sur  le  maintien  du  regime  qui  jusqu’alors  avait 
ete  pratique, 

que  le  Gouvemement  Japonais  pretend,  il  est  vrai,  que  la  question 
de  maintenir  le  status  quo  ne  se  rapportait  qu’aux  terrains,  mais  que 
cette  pretention  ne  se  trouve  pas  justifiee  par  les  expressions  employees 
au  cours  des  negociations, 

qu’au  contraire,  le  representant  du  Gouvemement  Japonais  qui  a pris 
I'initiative  pour  arriver  a un  accord  dans  ce  sens  s’est  borne  a proposer 
le  maintien  du  status  quo  dans  les  concessions  etrangeres  {maintenance 
of  the  status  quo  in  the  foreign  settlements) , 

qu’il  n’est  pas  a presumer  que  le  delegue  de  la  Grande-Bretagne,  en 
presentant  un  pro  jet  elabore  sur  la  base  de  ladite  projxisition,  ait 
entendu  faire  une  restriction  concemant  les  constructions,  que  cela 
ne  resulte,  ni  des  mots  inseres  dans  le  proces-verbal,  ni  du  contenu  de 
I’article  par  lui  propose, 

que,  pour  maintenir  integralement  le  status  quo,  il  ne  suffirait  pas 
d’admettre  que  I’immunite  fiscale,  qui  jusqu’a  cette  epoque  s’etendait, 
tant  sur  les  terrains  que  sur  les  constructions,  dans  les  quartiers 
etrangers,  serait  maintenue  pour  le  sol  seulement  et  qu’elle  cesserait 
d’exister  pour  ce  qui  concerne  les  maisons, 

qu'il  doit  surtout  en  etre  ainsi  lorsqu’on  considere  que,  pour  se  con- 
former  a ce  qui  etait  convenu,  les  Parties  ne  se  sont  pas  bornees  a 
formuler  une  disposition  au  sujet  de  la  confirmation  des  baux,  mais 
qu’elles  ont  ajoute  qu’aucunes  conditions,  sauf  cedes  contenues  dans 
les  baux  en  vigueur,  ne  seront  imposees  relativement  a une  telle 
propriete  (no  conditions  whatsoever  other  than  those  contained  in  such 
existing  leases  shall  be  imposed  in  respect  of  such  property), 
que  cette  derniere  clause  et  redigee  d’une  fagon  encore  plus  expli- 
cite  dans  le  traite  avec  la  France, 

Attendu  qu’au  surplus,  dans  les  clauses  dont  il  s’agit,  les  Puissances 
n’ont  pas  parle  de  terrains,  comme  elles  auraient  du  necessairement  le 
faire  si  Timmunite,  contrairement  a ce  qui  avait  ete  pratique  jusque 
la,  avait  du  etre  restreinte  aux  terrains, 

qu’elles  ont,  au  contraire,  employe  des  expressions  assez  larges  pour 
cpmprendre  dans  son  ensemble  la  situation  faite  par  les  baux  aux 
preneurs, 

Attendu  que  le  Tribunal  ne  saurait,  non  plus,  admettre  que  les  notes 
echangees  entre  les  Gouvernements  d’Allemagne  et  du  Japon,  au  mo- 
ment de  la  conclusion  du  nouveau  traite,  contiennent  des  explications 
de  nature  a placer  I’Allemagne  dans  des  conditions  moins  avantageuses 
que  les  deux  autres  Puissances, 

que  le  Gouvemement  du  Japon  a surtout  voulu  tirer  argument  de  ce 
que  le  Gouvemement  Allemand  a fonde  I’immunite  fiscale  sur  ce  qu’il 


THE  JAPANESE  HOUSE  TAX  CASE 


457 


est  interdit  aux  etrangers  d’acquerir  la  propriete  de  terrains  situes  au 
Japon,  mais  qu’a  cet  egard  il  faut  considerer  qu’en  fait  les  construc- 
tions avaient  tou jours  eu  le  caractere  de  dependances  des  terrains  au 
point  de  vue  des  impots,  et  qu’il  n’est  pas  a presumer  que  le  Gouverne- 
ment  Allemand  ait  entendu  renoncer  aux  avantages  consentis  en  faveur 
de  la  Grande-Bretagne  par  le  nouveau  traite,  ce  qui  serait  d’ailleurs  en 
contradiction  avec  la  clause  assurant  a TAllemagne  le  traitement  de  la 
nation  la  plus  favorisee, 


Par  ces  Motifs: 

Le  Tribunal  d’ Arbitrage,  a la  majorite  des  voix,  decide  et  declare: 

Les  dispositions  des  traites  et  autres  engagements  mentionnes  dans 
les  protocoles  d’arbitrage  n’exemptent  pas  seulement  les  terrains 
possedes  en  vertu  des  baux  perpetuels  concedes  par  le  Gouvernement 
Japonais  ou  en  son  nom,  mais  elles  exemptent  les  terrains  et  les  bati- 
ments  de  toute  nature  construits  ou  qui  pourraient  etre  construits  sur 
ces  terrains,  de  tous  impots,  taxes,  charges,  contributions  ou  conditions 
quelconques  autres  que  ceux  expressement  stipules  dans  les  baux  en 
question. 

Fait  a la  Haye,  dans  I’Hotel  de  la  Cour  permanente  d’Arbitrage,  le 
22  mai  1905. 

(Signe)  G.  Gram 

( “ ) L.  Renault 

Au  moment  de  proceder  a la  signature  de  la  presente  Sentence  arbi- 
trale,  usant  de  la  faculte  que  me  confere  I’article  52,  alinea  2,  de  la 
Convention  pour  le  reglement  pacifique  des  conflits  internationaux, 
conclue  a la  Haye  le  29  juillet  1899,  je  tiens  a constater  mon  dissenti- 
ment  absolu  avec  la  majorite  du  Tribunal,  en  ce  qui  concerne  les 
motifs  comme  le  dispositif  de  la  Sentence. 

(Signe)  I.  Motono 


Agreement  for  Arbitration  betzveen  Germany  and  Japan,  August  28, 

ipo2^ 

In  der  Erwagung, 

dass  zwischen  den  Regierungen  von  Deutschland,  Frankreich  und 
Grossbritannien  einerseits  und  der  Japanischen  Regierung  andrer- 
seits  ein  Streitfall  iiber  den  wahren  Sinn  und  die  Bedeutung  der 
nachstehend  aufgefiihrten  Bestimmungen  der  zwischen  ihnen  abge- 
schlossenen  Vertrage  und  anderen  Vereinbarungen  entstanden  ist, 
namlich : 

Artikel  XVIII,  Absatz  4,  des  Handels — und  Schiffahrtsvertrages 
zwischen  dem  Deutschen  Reich  und  Japan  vom  4.  April,  1896: 

“Sobald  diese  Einverleibung  erfolgt”  [das  heisst,  sobald  die  ein- 


OflBcial  report,  p.  5. 


458 


ORIGINAL  TEXTS 


zelnen  Fremdenniederlassungen  in  Japan  den  betreffenden  Japanischen 
Gemeinden  einverleibt  sein  werden],  “sollen  die  bestehenden,  zeitlich 
umbegrenzten  Ueberlassungsvertrage,  unter  welchen  jetzt  in  den  ge- 
dachten  Niederlassungen  Grundstiicke  besessen  werden,  bestatigt  und 
hinsichtlich  dieser  Grundstucke  sollen  keine  Bedingungen  irgend  einer 
anderen  Art  Auferlegt  werden,  als  sie  in  den  bestehenden  Ueberlas- 
sungsvertragen  enthalten  sind”; 

femer,  Ziffer  3 der  Note  des  Kaiserlich  Deutschen  Staatssekretars 
des  Auswartigen  Amts  vom  selben  Tage  an  den  Kaiserlich  Japanischen 
Gesandten  in  Berlin : 

“3.  dass,  da  das  Eigenthum  an  den  im  Artikel  XVIII  des  Vertrages 
erwahnten  Niederlassungsgrundstiicken  dem  Japanischen  Staate  ver- 
bleibt,  die  Besitzer  oder  deren  Rechtsnachfolger  fiir  ihre  Grundstucke 
ausser  dem  kontraktmassigen  Grundzins  Abgaben  oder  Steuem  irgend 
welcher  Art  nicht  zu  entrichten  haben  werden” ; 

Und  im  Absatz  1 der  Erwiderung  des  Japanischen  Gesandten  vom 
selben  Tage  auf  die  vorhergehende  Note: 

“das  die  darin  unter  Nummer  1 bis  4 zum  Ausdruck  gebrachten 
Voraussetzungen,  welche  den  Erwerb  dinglicher  Rechte  an  Grund- 
stiicken,  die  Errichtung  von  Waarenhausern,  die  Steuerfreiheit  der 
Grundstucke  in  den  Fremdenniederlassungen  und  die  Erhaltung  woh- 
lerworbener  Rechte  nach  Ablauf  des  Vertrages  zum  Gegenstande 
haben,  in  alien  Punkten  zutreffend  sind” ; 

Artikel  XXI,  Absatz  4,  des  revidirten  Vertrages  Zwischen  Frank- 
reich  und  Japan  vom  4.  August,  1896: 

“Lorsque  les  changements  ci-dessus  indiques  auront  ete  efectues” 
[das  heisst:  sobald  die  einzelnen  Fremdenniederlassungen  in  Japan 
den  betreffenden  Japanischen  Gemeinden  einverleibt  sein  und  Bestand- 
theile  der  Japanischen  Gemeinden  bilden  werden;  und  sobald  die 
zustandigen  Japanischen  Behorden  alle  municipalen  Verbindlichkeiten 
und  Verpflichtungen  ubernommen  haben  un  die  municipalen  Gelder 
und  Vermogensgegenstande,  welche  diesen  Niederlassungen  gehoren, 
den  genannten  Japanischen  Behorden  ubergeben  sein  werden],  “les 
baux  a perpetuite  en  vertu  desquels  les  etrangers  possedent  actuelle- 
ment  des  proprietes  dans  les  quartiers  seront  confirmes,  et  les  pro- 
prietes  de  cette  nature  ne  donneront  lieu  a aucuns  impots,  taxes, 
charges,  contributions  ou  conditions  quelconques  autres  que  ceux  ex- 
pressement  stipules  dans  les  baux  en  question” ; und 

Artikel  XVIII,  Absatz  4,  des  revidirten  Vertrages  vom  16.  Juli, 
1894,  zwischen  Grossbritannien  und  Japan : 

“When  such  incorporation  takes  place”  [das  heisst:  sobald  die 
einzelnen  Fremdenniederlassungen  in  Japan  den  betreffenden  Japanis- 
chen Gemeinden  einverleibt  sein  werden],  “existing  leases  in  per- 
petuity under  which  property  is  now  held  in  the  said  Settlements  shall 
be  confirmed,  and  no  conditions  whatsoever  other  than  those  contained 
in  such  existing  leases  shall  be  imposed  in  respect  of  such  property”; 
In  der  Erwagung, 

dass  der  Streitfall  auf  gewohnlichem  diplomatischen  Wege  nicht 
erledigt  werden  kann ; 


THE  JAPANESE  HOUSE  TAX  CASE 


459 


Und  in  der  Erwagung, 

dass  die  betheiligten  Machte,  welche  Signatarmachte  des  Haager 
Abkommens  zur  friedlichen  Erledigung  interaationaler  Streitfalle 
sind,  beschlossen  haben,  den  Streitfall  dadurch  zu  erledigen,  dass  sie 
denselben  in  Gemassheit  der  Bestimmungen  des  vorerwahnten  Abkom- 
mens einem  unparteiischen  Schiedsgericht  unterbreiten ; 

haben  die  genannten  Regierungen  zur  Ausfiihrung  dieses  Ent- 
schlusses  die  nachstehenden  Vertreter,  namlich: 

die  Regierung  von  Deutschland; 

den  Ausserordentlichen  Gesandten  und  Bevollmachtigten  Minister 
Seiner  Majestat  des  Deutschen  Kaisers,  Konigs  von  Preussen,  Herm 
Grafen  von  Arco  Valley; 

die  Regierung  von  Frankreich : 

den  Bevollmachtigten  Minister,  Geschaftstrager  von  Frankreich, 
Herm  G.  Dubail; 

die  Regierung  von  Grossbritannien : 

den  Ausserordentlichen  Gesandten  und  Bevollmachtigten  Minister 
Seiner  Majestat  des  Konigs  von  Grossbritannien,  Sir  Claude  Maxwell 
Macdonald,  G.C.M.G.,  K.C.B. ; 

die  Regiemng  von  Japan : 

den  Minister  der  Auswartigen  Angelegenheiten  Seiner  Majestat  des 
Kaisers  von  Japan,  Herrn  Baron  Komura  Jutaro; 

ermachtigt,  das  nachstehende  Protokoll  abzuschliessen : 

I.  Die  an  dem  Streitfall  betheiligten  Regierungen  kommen  dahin 
iiberein,  dass  das  Schiedsgericht,  welchem  der  Streitfall  zur  endgiilti- 
gen  Entscheidung  vorzulegen  ist,  aus  drei  Mitgliedem  bestehen  soil, 
die  dem  standigen  Schiedshof  im  Haag  angehoren  und  in  nachstehen- 
der  Weise  zu  bestimmen  sind: 

Jede  Partei  hat  sobald  wie  moglich,  jedenfalls  nicht  spater  als  zwei 
Monate  nach  dem  Datum  dieses  Protokolls,  einen  Schiedsrichter  zu 
ernennen,  und  die  beiden  so  ernannten  Schiedsrichter  haben  gemein- 
schaftlich  einen  Obmann  zu  wahlen.  Wenn  die  beiden  Schiedsrichter 
zwei  Monate  nach  ihrer  Ernennung  einen  Obmann  noch  nicht  gewahlt 
haben,  so  soli  Seine  Majestat  der  Konig  von  Schweden  und  Nor- 
wegen  gebeten  werden,  einen  Obmann  zu  ernennen. 

II.  Die  Streitfrage,  iiber  welche  die  in  diesem  Schiedsverfahren 
streitenden  Parteien  eine  endgultige  Entscheidung  des  Schiedsgerichts 
erbitten,  ist  folgende : 

Befreien  die  vorerwahnten  Bestimmungen  der  Vertrage  und  ubrigen 
Vereinbarungen  lediglich  den  Grund  und  Boden,  welcher  unter  den 
zeitlich  unbegrenzten,  von  der  Japanischen  Regierung  oder  fiir  die- 
selbe  abgeschlossenen  Ueberlassungsvertragen  besessen  wird,  oder 
befreien  sie  Grund  und  Boden  und  Gebaude  jeglicher  Art,  welche  auf 
diesem  Grund  und  Boden  errichtet  sind  oder  in  der  Folge  errichtet 
werden  sollten,  von  alien  Abgaben,  Steuem,  Eastern,  Contributionen 
oder  Bedingungen  jeder  Art,  welche  nicht  ausdriicklich  in  den  betref- 
fenden  Ueberlassungsvertragen  festgesetzt  sind? 

III.  Innerhalb  von  acht  Monaten,  vom  Datum  dieses  Protokolls  an 
gerechnet,  soil  jede  Partei  den  einzelnen  Mitgliedem  des  Schiedsge- 


460 


ORIGINAL  TEXTS 


richts  und  der  Gegenpartei  in  je  einem  Exemplar  eine  vollstandige, 
geschriebene  oder  gedruckte  Darstellung  des  Streitfalls,  ihrer  Griinde 
und  des  Beweismaterials  iiberreichen,  auf  welche  sie  sich  in  dem 
gegenwartigen  Schiedsverfahren  stiitzt.  Innerhalb  von  vveiteren  sechs 
Monaten  haben  beide  Parteien  in  gleicher  Weise  in  geschriebener  oder 
gedruckter  Form  ihre  Gegenvorstellungen  nebst  deren  schliesslicher 
Begrundung  sowie  das  erganzende  Beweismaterial  einzureichen ; diese 
Gegenvorstellungen,  deren  Begrundung  und  das  erganzende  Beweis- 
material sollen  indessen  lediglicli  eine  Erwiderung  auf  die  von  der 
Gegenpartei  eingereichte  Darstellung  des  Streitfalls,  auf  dessen  Be- 
grundung und  auf  das  darauf  beziigliche  Beweismaterial  enthalten. 

IV.  Jeder  Partei  steht  das  Recht  zu,  dem  Schiedsgericht  als  Be- 
weismaterial alle  diejenigen  Urkunden,  Schriftstiicke,  amtlichen  Cor- 
respondenzen  und  anderen  offiziellen  oder  dffentlichen  Erklarungen 
und  Akten  iiber  den  Streitgegenstand  zu  unterbreiten,  deren  Vorle- 
gung  sie  als  nothwendig  erachtet.  Wenn  aber  eine  Partei  in  ihrer 
Darstellung  des  Streitfalls,  ihrer  Gegenvorstellung  oder  Begrundung 
ein  in  ihrem  ausschliesslichen  Besitz  befindliches  Schriftstiick  erwahnt 
oder  auf  ein  solches  Bezug  nimmt,  ohne  eine  Abschrift  beizufiigen,  so 
ist  sie  verpflichtet,  der  Gegenpartei  auf  deren  Verlangen  innerhalb  von 
dreissig  Tagen  nach  Stellung  des  beziiglichen  Antrags  eine  Abschrift 
des  betreffenden  Schriftsticks  auszuhandigen. 

V.  Jede  Partei  ist  berechtigt,  vorbehaltlich  des  Rechts  einer  Er- 
widerung seitens  der  Gegenpartei,  dem  Schiedsgericht  innerhalb  einer 
von  ihm  zu  bestimmenden  Frist  zur  geeigneten  Verwerthung  eine 
Aufzeichnung  derjenigen  Einwendungen  vorzulegen,  die  sie  beziiglich 
der  von  der  anderen  Partei  eingereichten  Gegenvorstellung,  deren 
Begrundung  und  des  erganzenden  Beweismaterials  erhebt,  wenn  sie 
der  Ansicht  ist,  dass  die  betreffenden  Schriftstiicke  oder  einige  dersel- 
ben  unerheblich  oder  unrichtig  sind,  oder  sich  nicht  genau  in  den 
Grenzen  einer  Erwiderung  auf  die  Darstellung  des  Streitfalls,  deren 
Begrundung  oder  auf  das  Beweismaterial  halten. 

VI.  Abgesehen  von  den  unter  Nummer  III  und  V dieses  Protokolls 
dufgefuhrten,  sollen  keine  Schriftstiicke  oder  Mittheilungen  in  schrift- 
licher  oder  miindlicher  Form  in  dem  Schiedsverfahren  zugelassen 
oder  berucksichtigt  werden,  es  sei  denn,  dass  das  Schiedsgericht  von 
einer  Partei  neue  oder  erganzende,  in  schriftlicher  Form  abzugebende 
Erlauterungen  oder  Aufschliisse  verlangt.  Sind  diese  Erlauterungen 
oder  Aufschliisse  gegeben,  so  soli  die  Gegenpartei  berechtigt  sein,  sich 
hierauf  innerhalb  einer  vom  dem  Schiedsgericht  zu  bestimmenden 
Frist  schriftlich  zu  aussern. 

VII.  Das  Gericht  soil  an  einem  spater  von  den  Parteien  zu  bezeich- 
nenden  Ort  so  bald  wie  thunlich  zusammentreten,  aber  nicht  eher  als 
zwei  Monate  und  nicht  spater  als  drei  Monate  nach  Einreichung  der 
Gegenvorstellung  gemass  Nummer  III  dieses  Protokolls ; es  soil  den 
Streitfall  unparteiisch  und  sorgfaltig  priifen  und  entscheiden.  Die 
Entscheidung  des  Gerichtes  soil,  wenn  mdglich,  innerhalb  eines  Monats 
nach  dem  Zeitpunkt  verkiindet  werden,  an  dem  der  Prasident  die 
Verhandlung  fiir  geschlossen  erklart  hat. 


THE  JAPANESE  HOUSE  TAX  CASE 


461 


VIII.  In  dem  Schiedsverfahren  ist  die  Japanische  Regierung  als  die 
eine  Partei  anzusehen,  wahrend  die  Regierungen  von  Deutschland, 
Frankreich  und  Grossbritannien  zusammen  als  die  andere  Partei 
gelten. 

IX.  Sofern  in  diesem  Protokoll  nichts  anderes  vorgesehen  ist, 
sollen  in  dem  gegenwartigen  Schiedsverfahren  die  Vorschriften  des 
Haager  Abkommens  zur  friedlichen  Erledigung  intemationaler  Streit- 
falle  zur  Anwendung  kommen. 

So  geschehen  in  Tokio  am  28.  August,  1902  (28.  Tag  des  8.  Monats 
des  35.  Jahres  Meiji). 

GEz.  Graf  von  Arco  Valley 

GEZ.  JUTARO  KoMURA 


Agreement  for  Arbitration  between  France  and  Japan,  August  28, 

igo2^ 

Attendu  qu’un  desaccord  s’est  produit  entre  le  Gouvemement  du 
Japon  d’une  part,  et  les  Gouvemements  de  France,  d’Allemagne  et  de 
Grande-Bretagne  d’autre  part,  touchant  le  sens  reel  et  la  portee  des 
dispositions  suivantes  des  Traites  respectifs  et  autres  engagements 
existant  entre  eux,  c’est-a-dire : 

Paragraphe  4 de  1’ Article  XVIII  du  Traite  de  Commerce  et  de 
Navigation  du  4 Avril,  1896,  entre  le  Japon  et  I’Allemagne : “Sobald 
diese  Einverleibung  erfolgt”  [c’est-a-dire:  quand  les  divers  quartiers 
etrangers  qui  existent  au  Japon  auron  ete  incorpores  dans  les  Com- 
munes respectives  du  Japon],  “sollen  die  bestehenden,  zeitlich  unbe- 
grenzten  Ueberlassungsvertrage,  unter  welchen  jetzt  in  den  gedachten 
Niederlassungen  Grundstiicke  besessen  werden,  bestatigt  und  hinsicht- 
lich  dieser  Grundstiicke  sollen  keine  Bedingungen  irgend  einer  anderen 
Art  auferlegt  werden,  als  sie  in  den  bestehenden  Ueberlassungsver- 
tragen  enthalten  sind’’ ; et  §3  de  la  communication  complementaire  de 
meme  date  du  Secretaire  d’Etat  des  Affaires  Etrangeres  de  I’Empire 
d’Allemagne  au  Ministre  du  Japon  a Berlin : “3.  dass,  da  das  Eigen- 
thum  an  den  im  Artikel  XVIII  des  Vertrages  erwahnten  Niederlas- 
sungsgrundstucken  dem  Japanischen  Staate  verbleibt,  die  Besitzer 
Oder  deren  Rechtsnachfolger  fiir  ihre  Grundstiicke  ausser  dem  kon- 
traktmassigen  Grundzins  Abgaben  oder  Steuern  irgend  welcher  Art 
nicht  zu  entrichten  haben  werden,’’  et  I’alinea  suivant  de  la  reponse  du 
Ministre  du  Japon  de  meme  date  a la  precedente  communication: 
“dass  die  darin  unter  Nummer  1 bis  4 zum  Ausdruck  gebrachten 
Voraussetzungen,  welche  den  Erwerb  dinglicher  Rechte  an  Grund- 
stiicken,  die  Errichtung  von  Waarenhausern,  die  Steuerfreiheit  der 
Grundstiicke  in  den  Fremdenniederlassungen  und  die  Erhaltung 
wohlerworbener  Rechte  nach  Ablauf  des  Vertrages  zum  Gegenstande 
haben,  in  alien  Punkten  zutreffend  sind’’ ; 

Paragraphe  4 de  I’Article  XXI  du  Traite  revise  de  4 Aout,  1896, 


^Official  report,  p.  9. 


462 


ORIGINAL  TEXTS 


entre  le  Japon  et  la  France:  “Lorsque  les  changements  ci-dessus 
indiques  auront  ete  effectues”  [c’est-a-dire:  lorsque  les  divers  quar- 
tiers  etrangers  qui  existent  au  Japon  auront  ete  incorpores  aux  Com- 
munes respectives  du  Japon  et  feront  des  lors  partie  de  systeme  mu- 
nicipal du  Japon;  et  lorsque  les  Autorites  Japonaises  competentcs 
auront  assume  toutes  les  obligations  et  tous  les  devoirs  mimicipaux, 
et  que  les  fonds  et  biens  municipaux  qui  pourraient  appartenir  a ces 
quartiers  auront  ete  transferes  aux  dites  autorites],  “les  baux  a per- 
petuite  en  vertu  desquels  les  etrangers  possedent  actuellement  des  pro- 
prietes  dans  les  quartiers  seront  confirmes,  et  les  proprietes  de  cette 
nature  ne  donneront  lieu  a aucuns  impots,  taxes,  charges,  contributions 
ou  conditions  quelconques  autres  que  ceux  expressement  stipules  dans 
les  baux  en  question” ; 

Paragraphe  4 de  I’Article  XVIII  du  Traite  revise  du  16  Juillet, 
1894,  entre  le  Japon  et  la  Grande-Bretagne : “When  such  incorpora- 
tion takes  place”  [c’est-a-dire:  quand  les  divers  quartiers  etrangers 
que  existent  au  Japon  auront  ete  incorpores  aux  Communes  respec- 
tives du  Japon],  “existing  leases  in  perpetuity  under  which  property 
is  now  held  in  the  said  Settlements  shall  be  confirmed,  and  no  condi- 
tions whatsoever  other  than  those  contained  in  such  existing  leases 
shall  be  imposed  in  respect  of  such  property” ; 

Attendu  que  le  litige  n’est  pas  susceptible  d’etre  regie  par  la  voie 
diplomatique ; 

Attendu  que  les  Puissances  en  disaccord,  co-Signataires  de  la  Con- 
vention de  La  Haye  pour  le  reglement  pacifique  des  conflits  intema- 
tionaux,  ont  resolu  de  terminer  ce  diflerend,  en  soumettant  la  ques- 
tion a un  arbitrage  impartial  suivant  les  stipulations  de  la  dite 
Convention ; 

Les  dites  Puissances  ont,  dans  le  but  de  realiser  ces  vues,  autorise 
les  Representants  ci-dessous  designes,  a savoir: 

Le  Gouvemement  Frangais:  M.  G.  Dubail,  Ministre  Plenipotentiaire, 
Charge  d’Affaires  de  la  Republique  Frangaise; 

Le  Gouvemement  Allemand : M.  le  Comte  d’Arco  Valley,  Envoye 
Extraordinaire  et  Ministre  Plenipotentiaire  de  Sa  Majeste  I’Empereur 
d’Allemagne,  Roi  de  Prusse; 

Le  Gouvemement  de  Grande-Bretagne:  Sir  Claude  Maxwell  Mac- 
donald, G.C.M.G.,  K.C.B.,  Envoye  Extraordinaire  et  Ministre  Pleni- 
potentiaire de  Sa  Majeste  le  Roi  de  Grande-Bretagne; 

Le  Gouvemement  du  Japon : M.  le  Baron  Komura  Jutaro,  Ministre 
des  Affaires  Etrangeres  de  Sa  Majeste  I’Empereur  du  Japon ; 
d conclure  le  Protocole  suivant: 

I.  Les  Puissances  en  litige  decident  que  le  Tribunal  Arbitral  auquel 
la  question  sera  soumise  en  dernier  ressort  sera  compose  de  trois  mem- 
bres  pris  parmi  les  Membres  de  la  Cour  Permanente  d’Arbitrage  de 
La  Haye  et  qui  seront  designes  de  la  maniere  suivante : 

Chaque  Partie,  aussitot  que  possible,  et  dans  un  delai  qui  n’ex- 
cedera  pas  deux  mois  a partir  de  la  date  de  ce  Protocole,  devra  nom- 
mer  un  Arbitre,  et  les  deux  Arbitres  ainsi  designes  choisiront  ensemble 
un  sur-Arbitre.  Dans  le  cas  ou  les  deux  Arbitres  n’auront  pas,  dans 


THE  JAPANESE  HOUSE  TAX  CASE 


463 


le  delai  de  deux  mois  apres  leur  designation,  choisi  un  sur-Arbitre,  Sa 
Majeste  le  Roi  de  Suede  et  Norvege  sera  prie  de  nommer  un  sur- 
Arbitre. 

II.  La  question  en  litige  sur  laquelle  les  Parties  demandent  au 
Tribunal  Arbitral  de  prononcer  une  decision  definitive  est  la  suivante: 

Oui  ou  non,  les  dispositions  des  Traites  et  autres  engagements  ci- 
dessus  mentionnes,  exemptent-elles  seulement  les  terrains  possedes  en 
vertu  des  baux  perpetuels  concedes  par  le  Gouvemement  Japonais  ou 
en  son  nom,  ou  bien  exemptent-elles  les  terrains  et  les  batiments  de 
toute  nature  construits  ou  qui  pourraient  etre  construits  sur  ces 
terrains,  de  tous  impots,  taxes,  charges,  contributions  ou  conditions 
quelconques  autres  que  ceux  expressement  stipules  dans  les  baux  en 
question  ? 

III.  Dans  le  delai  de  huit  mois  apres  la  date  de  ce  Protocole, 
chaque  Partie  devra  remettre  aux  differents  membres  du  Tribunal  et 
a I’autre  Partie,  les  copies  completes,  ecrites  ou  imprimees,  de  son 
Memoire  contenant  toutes  pieces  a I’appui  et  arguments  produits  par 
elle  au  present  Arbitrage.  Dans  un  delai  de  six  mois  au  plus  apres 
cette  remise,  une  communication  semblable  sera  faite  des  copies 
manuscrites  ou  imprimees,  des  Contre-Memoires,  pieces  a I’appui  et 
conclusions  finales  des  deux  Parties:  il  est  bien  entendu  que  ces  re- 
pliques,  documents  additionnels  et  conclusions  finales  devront  se 
limiter  a repondre  au  Memoire  principal  et  aux  argumentations  pro- 
duites  precedemment. 

IV.  Chaque  Partie  aura  le  droit  de  soumettre  au  Tribunal  Arbitral 
comme  instruments  a faire  valoir,  tous  les  documents,  Memoires, 
correspondances  officielles,  declarations  ou  actes  officiels  ou  publics  se 
rapportant  a I’objet  de  I’Arbitrage  et  qu’elle  jugera  necessaire.  Mais 
si,  dans  les  Memoires,  Contre-Memoires  ou  arguments  soumis  au  Tri- 
bunal, I’unc  ou  I’autre  Partie  s'est  referee  ou  a fait  allusion  a un 
document  ou  papier  en  sa  possession  exclusive  dont  elle  n’aura  pas 
joint  la  copie,  elle  sera  tenue,  si  I’autre  Partie  le  juge  convenable,  de 
lui  en  donner  la  copie  dans  les  trente  jours  qui  en  suivront  la  demande. 

V.  Chacune  des  Parties  peut,  si  elle  le  juge  convenable,  mais  sous 
la  reserve  d’un  droit  de  reponse  de  la  part  de  I’autre  Partie,  dans  un 
temps  qui  sera  fixe  par  le  Tribunal  Arbitral,  presenter,  a telles  fins 
que  celui-ci  jugera  utiles,  un  etat  de  ces  objections  aux  Contre- 
Memoires,  instruments  additionnels,  et  conclusions  finales  de  I’autre 
Partie,  dans  le  cas  ou  ces  documents  ou  I’un  d’eux  n’auraient  pas  trait 
a la  question,  seraient  erronnes  ou  ne  se  limiteraient  pas  a repondre 
strictement  au  Memoire  principal  et  a son  argumentation. 

VI.  Ni  papiers,  ni  communications,  soit  ecrites,  soit  orales,  autres 
que  ceux  prevus  par  les  paragraphes  III  et  V de  ce  Protocole  ne 
devront  etre  acceptes  ou  pris  en  consideration  dans  le  present  Arbi- 
trage a moins  que  le  Tribunal  ne  demande  a Tune  ou  I’autre  Partie 
une  explication  ou  information  supplementaire  qui  devra  etre  donnee 
par  ecrit.  Dans  ce  cas,  I’autre  Partie  aura  le  droit  de  presenter  une 
reponse  ecrite  dans  un  delai  a fixer  par  le  Tribunal. 


464 


ORIGINAL  TEXTS 


VII.  Le  Tribunal  se  reunira  en  un  lieu  indique  plus  tard  par  les 
Parties,  aussitot  que  possible,  mais  ni  avant  deux  mois,  ni  plus  tard 
que  trois  mois  a dater  de  la  remise  des  Contre-Memoires  prevue  au 
Paragraphe  III  de  ce  Protocole;  il  procedera  avec  impartialite  et  soin 
a I’examen  et  au  jugement  du  litige.  Le  jugement  du  Tribunal  sera 
prononce  autant  que  possible  dans  le  delai  d’un  mois  apres  la  cloture 
par  le  President  des  debats  de  I’Arbitrage. 

VIII.  Dans  cet  Arbitrage,  le  Gouvernement  Japonais  sera  considere 
comme  etant  I’une  des  Parties,  et  les  Gouvemements  Frangais,  Alle- 
mand,  et  de  la  Grande-Bretagne  conjointement  comme  etant  I’autre 
Partie. 

IX.  En  tout  ce  qui  n’est  pas  prevu  par  le  present  Protocole,  les 
stipulations  de  la  Convention  de  La  Haye  pour  le  reglement  pacifique 
des  conflits  internationaux  seront  appliquees  a cet  Arbitrage. 

Fait  a Tokio  le  28  Aout,  1902,  correspondant  au  28^“®  jour  du 
8«me  mois  de  la  35®“®  annee  de  Meiji. 

Signe : G.  Dubail 
Signe : Jutaro  Komura 


Extract  from  the  Treaty  of  Commerce  and  Nazngation  of  April  if., 
i8g6,  between  Germany  and  Japan^ 

Art.  18.  Die  vertragschliessenden  Theile  sind  iiber  Folgendes 
einverstanden : 

Die  einzelnen  Fremdenniederlassungen  in  Japan  sollen  den  betref- 
fenden  japanischen  Gemeinden  einverleibt  werden  und  hinfort  Be- 
standtheile  der  japanischen  Gemeinden  bilden. 

Die  zustandigen  japanischen  Behorden  sollen  demnach  mit  Bezug 
auf  dieselben  alle  Verbindlichkeiten  und  Verpflichtungen  ubernehmen, 
welche  ihnen  hinsichtlich  der  Gemeinden  obliegen,  und  gleichzeitig 
sollen  die  offentlichen  Gelder  und  Vermogensgegenstande,  welche 
diesen  Niederlassungen  gehoren,  den  genannten  japanischen  Behorden 
iibergeben  werden. 

Sobald  diese  Einverleibung  erfolgt,  sollen  die  bestehenden,  zeitlich 
unbegrenzten  Ueberlassungsvertrage,  unter  welchen  jetzt  in  den  ge- 
dachten  Niederlassungen  Grundstiicke  besessen  werden,  bestatigt  und 
hinsichtlich  dieser  Grundstiicke  sollen  keine  Beding^ngen  irgend  einer 
anderen  Art  auferlegt  werden,  als  sie  in  den  bestehenden  Ueberlas- 
sungsvertragen  enthalten  sind. 

Die  Besitzrechte  an  diesen  Niederlassungsgrundstucken  kdnnen  in 
Zukunft  von  ihren  Besitzern  frei  und,  ohne  dass  es  dazu,  wie  bisher 
in  gewissen  Fallen,  der  Genehmigung  der  konsularischen  oder  japanis- 
chen Behorden  bedarf,  an  Inlander  .oder  Auslander  veraussert  werden. 

Im  Uebrigen  gehen  die  nach  den  urspriinglichen  Ueberlassungs- 
vertragen  den  Konsularbehdrden  zustehenden  Funktionen  auf  die 
japanischen  Behorden  uber. 


'Martens,  Nouveau  Recueil  GinSral  de  Traitis,  2d  series,  vol.  23,  p.  275. 


THE  JAPANESE  HOUSE  TAX  CASE 


465 


Alle  Landereien,  welche  von  de  japanischen  Regierung  fiir  6f- 
fentliche  Zwecke  der  Fremdenniederlassung  bisher  zinsfrei  hergegeben 
worden  sind,  sollen,  unbeschadet  der  aus  der  Gebietshoheit  sich  erge- 
benden  Rechte,  frei  von  alien  Steuem  und  Lasten  den  offentlichen 
Zwecken,  fiir  welche  sie  ursprunglich  bestimmt  worden,  dauernd 
erhalten  bleiben. 

Art.  19.  Der  gegenwartige  Vertrag  erstreckt  sich  auch  auf  die  mit 
einem  der  vertragschliessenden  Theile  gegenwartig  oder  kiinftig  zoll- 
geeinten  Gebiete. 

Art.  20.  Der  gegenwartige  Vertrag  tritt  vom  Tage  seines  vollen 
Inkrafttretens  ab  an  die  Stelle  des  Vertrages  vom  20.  Februar  1869, 
sowie  derjenigen  Abkommen  und  Uebereinkiinfte,  welche  in  Ergan- 
zung  des  letzteren  Vertrages  abgeschlossen  sind  oder  bestehen.  Von 
demselben  Tage  ab  verlieren  jene  friiheren  Vereinbarungen  ihre 
Wirksamkeit,  und  demgemass  hort  alsdann  die  bis  dahin  in  Japan 
ausgeiibte  Gerichtsbarkeit  deutscher  Gerichtsbehorden  auf  und  errei- 
chen  alle  ausnahmsweisen  Privilegien,  Befreiungen  und  Immunitaten, 
die  bis  dahin  die  deutschen  Reichsangehorigen  als  einen  Bestandtheil 
oder  einen  Ausfluss  dieser  Gerichtsbarkeit  genossen,  ohne  Weiteres 
ihre  Endschaft.  Diese  Gerichtsbarkeit  wird  alsdann  von  japanischen 
Gerichten  iibernommen  und  ausgeiibt  werden. 


Extract  from  the  Treaty  of  Commerce  and  Ncmgation  of  August  4, 
i8g6,  between  France  and  Japan^ 

XXL  Le  Gouvemement  de  la  Republique  Frangaise  donne,  en  ce 
qui  le  conceme,  son  adhesion  a I’arrangement  suivant: 

Les  divers  quartiers  etrangers  qui  existent  au  Japon  seront  incor- 
pores  aux  communes  respectives  du  Japon  et  feront  des  lors  partie 
du  systeme  municipal  du  Japon. 

Les  autorites  Japonaises  competentes  assumeront  en  consequence 
toutes  les  obligations  et  tous  les  devoirs  municipaux  qui  resultent  de 
ce  nouvel  etat  de  choses,  et  les  fonds  et  biens  municipaux  qui  pour- 
raient  appartenir  a ces  quartiers  seront,  de  plein  droit,  transferees  aux 
dites  autorites  Japonaises. 

Lorsque  les  changements  ci-dessus  indiques  auront  ete  effectues,  les 
baux  a perpetuite,  en  vertu  desquels  les  etrangers  possedent  actuelle- 
ment  des  proprietes  dans  les  quartiers  seront  confirmes,  et  les  pro- 
prietes  de  cette  nature  ne  donneront  lieu  a aucuns  impots,  taxes, 
charges,  contributions,  ou  conditions  quelconques  autres  que  ceux  ex- 
pressement  stipules  dans  les  baux  en  question.  II  est  entendu  toute- 
fois  qu’aux  autorites  Consulaires  dont  il  y est  fait  mention  seront 
substituees  les  autorites  Japonaises. 

Les  terrains  que  le  Gouvemement  Japonais  aurait  concedes  exempts 
de  rentes,  vu  I’usage  public  auquel  ils  etaient  affectes,  resteront,  sous 
la  reserve  de  droits  de  la  souverainete  territoriale,  affranchis  d’une 


^British  and  Foreign  State  Papers,  vol.  88,  p.  536. 


466 


ORIGINAL  TEXTS 


maniere  permanente  de  tous  impots,  taxes,  et  charges;  et  ils  ne  seront 
point  detoumes  de  I’usage  auquel  its  etainet  primitivement  destines. 

XXII.  Les  dispositions  du  present  Traite  sent  applicables  a I’Al- 
gerie.  II  est  entendu  qu’elles  deviendraient  en  outre  applicables  aux 
Q)lonies  Frangaises  pour  lesquelles  le  Gouvernement  Frangais  en) 
reclamerait  le  benefice.  Le  Representant  de  la  Republique  Frangaise 
a Tokio  aurait  a cet  effet  a le  notifier  au  Gouvernement  japonais  dans 
un  delai  de  deux  ans  a dater  du  jour  de  I’echange  des  ratifications  du 
present  Traite. 

XXIII.  A dater  de  la  mise  en  vig^ueur  du  present  Traite  seront 
abroges  le  Traite  du  9 Octobre,  1858,  la  Convention  du  25  Juin,  1866, 
et  en  general  tous  les  arrangements  conclus  entre  las  Hautes  Parties 
Contractantes  existant  anterieurement  a cette  date.  En  consequence, 
la  juridiction  Frangaise  au  Japon  et  les  privileges,  exemptions,  ou 
immunites  dont  les  Frangais  jouissaient  en  matiere  juridictionnellc 
seront  supprimes  de  plein  droit  et  sans  qu’il  soit  besoin  de  notifica- 
tion, du  jour  de  la  mise  en  vigueur  du  present  Traite;  et  les  Frangais 
seront  des  lors  sounds  a la  juridiction  des  Tribunaux  Japonais, 


THE  MUSCAT  DHOWS  CASE 


Award  of  the  Tribunal,  August  8,  /po5^ 

Le  Tribunal  d’ Arbitrage  constitue  en  vertu  du  Compromis  conclu  a 
I.ondres  le  13  octobre  1904,  entre  la  France  et  la  Grande  Bretagne; 

Attendu  que  le  Gouvemement  Frangais  et  celui  de  Sa  Majeste 
Britannique  ont  juge  convenable,  par  la  Declaration  du  10  mars  1862, 
“de  s’engager  reciproquement  a respecter  I’independance”  de  Sa 
Hautesse  le  Sultan  de  Mascate, 

Attendu  que  des  difficultes  se  sont  elevees  sur  la  portee  de  cette 
Declaration  relativement  a la  delivrance,  par  la  Republique  Frangaise, 
a certains  sujets  de  Sa  Hautesse  le  Sultan  de  Mascate  de  pieces  les 
autorisant  a arborer  le  pavilion  Frangais,  ainsi  qu’au  sujet  de  la  nature 
des  privileges  et  immunites  revendiques  par  les  sujets  de  Sa  Hautesse, 
proprietaires  ou  commandants  de  boutres  (“dhows”)  qui  sont  en  pos- 
session de  semblables  pieces  ou  qui  sont  membres  de  I’equipage  de  ces 
boutres  et  leurs  families,  particulierement  en  ce  qui  conceme  le  mode 
suivant  lequel  ces  privileges  et  ces  immunites  affectent  le  droit  de 
juridiction  de  Sa  Hautesse  le  Sultan  sur  ses  dits  sujets, 

Attendu  que  les  deux  Gouvemements  sont  tombes  d’accord  par  le 
Compromis  du  13  octobre  1904  de  faire  decider  ces  difficultes  par  voie 
d’arbitrage  conformement  a I’article  1 de  la  Convention  conclue  par  les 
deux  Puissances  le  14  octobre  1903, 

Attendu  qu’en  execution  de  ce  Compromis  ont  ete  nommes  Arbitres, 
par  le  Gouvemement  de  Sa  Majeste  Britannique: 

Monsieur  Melville  W.  Fuller,  Chief  Justice  des  Etats-Unis  d’Ame- 
rique,  et 

par  le  Gouvemement  de  la  Republique  Frangaise: 

Monsieur  le  Jonkheer  A.  F.  de  Savornin  Lohman,  Docteur  en 
droit,  ancien  Ministre  de  ITnterieur  des  Pays-Bas,  ancien  Professeur 
a rUniversite  libre  a Amsterdam,  Membre  de  la  Seconde  Chambre 
des  Etats-Generaux, 

Attendu  que  ces  Arbitres  n’etant  pas  tombes  d’accord  dans  le  delai 
d’un  mois  a partir  de  leur  nomination  sur  le  choix  d’un  Surarbitre,  ce 
choix  etant  devolu  des  lors  en  vertu  de  I’article  1 du  Compromis  au 
Roi  d’ltalie,  Sa  Majeste  a nomme  comme  Surarbitre: 

Monsieur  Henri  Lammasch,  Docteur  en  droit,  Professeur  de  droit 
international  a I’Universite  a Vienne,  Membre  de  la  Chambre  des 
Seigneurs  du  Parlement  Autrichien, 

Attendu  que  les  Memoires,  Contre-Memoires  et  Conclusions  ont  ete 
dument  communiques  au  Tribunal  et  aux  Parties, 

Attendu  que  le  Tribunal  a examine  avec  soin  ces  documents,  et  les 


^Official  report,  p.  61. 


468 


ORIGINAL  TEXTS 


observations  supplementaires  qui  leur  ont  ete  presentees  par  les  deux 
Parties ; 

Quant  a la  Premiere  Question  : 

Considerant,  qu’en  general  il  appartient  a tout  Souverain  de  decider 
a qui  il  accordera  le  droit  d’arborer  son  pavilion  et  de  fixer  les  regies 
auxquelles  I’octroi  de  ce  droit  sera  soumis,  et  considerant  qu’en  conse- 
quence I’octroi  du  pavilion  Frangais  a des  sujets  de  Sa  Hautesse  le 
Sultan  de  Mascate  ne  constitue  en  soi  aucune  atteinte  a I’independance 
du  Sultan, 

Considerant  que  neanmoins  un  Souverain  peut  etre  Ifmite  dans 
I’exercice  de  ce  droit  par  des  traites,  et  considerant  que  le  Tribunal  en 
vertu  de  I’article  48  de  la  Convention  pour  le  reglement  pacifique  des 
conflits  internationaux  du  29  juillet  1899  et  de  I’article  5 du  Compro- 
mis  du  13  octobre  1904,  “est  autorise  a determiner  sa  competence  en 
interpretant  le  compromis  ainsi  que  les  autres  traites  qui  peuvent  etre 
invoques  dans  la  matiere,  et  en  appliquant  les  principes  du  droit  inter- 
national,” et  qu’en  consequence  la  question  se  pose  sous  quelles  condi- 
tions les  Puissances  qui  ont  accede  a I’Acte  General  de  la  Conference 
de  Bruxelles  du  2 juillet  1890  concernant  la  suppression  de  la  traite 
des  esclaves  africaine,  specialement  a I’article  32  de  cet  Acte,  ont  le 
droit  d’autoriser  des  navires  indigenes  a arborer  leurs  p>avillons, 

Considerant  que  par  I’article  32  de  cet  Acte  la  faculte  des  Puissances 
Signataires  d’octroyer  leur  pavilion  a des  navires  indigenes  a ete  limitee 
dans  le  but  de  supprimer  la  traite  des  esclaves  et  dans  les  interets 
generaux  de  I’humanite,  sans  faire  aucune  distinction  si  celui  qui  solli- 
cite  le  droit  d’arborer  le  pavilion  appartient  a un  etat  signataire  ou  non, 
et  considerant  qu’en  tout  cas  la  France  est  liee  vis  a vis  de  la  Grande 
Bretagne  de  n’octroyer  son  pavilion  que  sous  les  conditions  prescrites 
par  cet  Acte, 

Considerant  que  pour  atteindre  le  but  susdit  les  Puissances  Signa- 
taires de  I’Acte  de  Bruxelles  sont  convenues  par  I’article  32,  que 
I’autorisation  d’arborer  le  pavilion  d’une  des  dites  Puissances  ne  sera 
accordee  a I’avenir  qu’aux  batiments  indigenes  qui  satisferont  a la  fois 
aux  trois  conditions  suivantes : 

1°.  Les  armateurs  ou  proprietaires  devront  etre  sujets  ou  proteges 
de  la  Puissance  dont  ils  demandent  a porter  les  couleurs, 

2°.  Ils  seront  tenus  d’etablir  qu’ils  possedent  des  biensfonds  dans 
la  circonscription  de  I’autorite  a qui  est  adressee  leur  demande,  ou  de 
foumir  une  caution  solvable  pour  la  garantie  des  amendes  qui 
pourraient  etre  eventuellement  encourues. 

3®.  Les  dits  armateurs  ou  proprietaires,  ainsi  que  le  capitaine  du 
batiment,  devront  foumir  la  preuve  qu’ils  jouissent  d’une  bonne  repu- 
tation et  notamment  n’avoir  jamais  ete  I’objet  d’une  condamnation 
pour  faits  de  traite, 

Considerant  qu’a  defaut  d’une  definition  du  terme  “protege”  dans 
I’Acte  General  de  la  Conference  de  Bruxelles,  il  faut  entendre  ce  terme 
dans  le  sens  qui  correspond  le  mieux  tant  aux  intentions  elevees  de 
cette  Conference  et  de  I’Acte  Final  qui  en  est  resulte,  qu’aux  principes 


THE  MUSCAT  DHOWS  CASE 


469 


du  droit  international  tels  qu’ils  ont  ete  exprimes  dans  les  conventions 
en  vigneur  a cette  epoque,  dans  la  legislation  nationale  en  tant  qu’elle 
a obtenu  une  reconnaissance  international  et  dans  la  pratique  du  droit 
des  gens, 

Considerant  que  le  but  de  I’article  32  susdit  est  de  n’admettre  a la 
navigation  dans  ces  mers  infestees  par  la  traite  des  esclaves  que  ceux 
des  navires  indigenes  qui  sont  soumis  a la  plus  stricte  surveillance 
des  Puissances  Signataires,  condition  dont  I’accomplissement  ne  peut 
etre  assure  que  si  les  proprietaires,  armateurs  et  equipages  de  ces 
navires  sont  exclusivement  soumis  a la  souverainete  et  a la  juridiction 
de  I’Etat,  sous  le  pavilion  duquel  ils  exercent  la  navigation, 

Considerant  que  depuis  la  restriction  que  le  terme  “protege”  a subie 
en  vertu  de  la  legislation  de  la  Porte  Ottomane  en  1863,  1865  et  1869, 
specialement  de  la  loi  Ottomane  du  23  sefer  1280  (aout  1863),  impli- 
citement  acceptee  par  les  Puissances  qui  jouissent  du  droit  des  capitu- 
lations, et  depuis  le  traite  conclu  entre  la  France  et  le  Maroc  en  1863, 
auquel  ont  accede  un  grand  nombre  d’autres  Puissances  et  qui  a 
obtenu  la  sanction  de  la  Convention  de  Madrid  du  30  juillet  1880,  le 
terme  “protege”  n’embrasse  par  rapport  aux  Etats  a capitulations  que 
les  categories  suivantes:  1°.  les  personnes  sujets  d’un  pays  qui  est 
sous  le  protectorat  de  la  Puissance  dont  elles  reclament  la  protection, 
2°.  les  individus  qui  correspondent  aux  categories  enumerees  dans  les 
traites  avec  le  Maroc  de  1863  et  de  1880  et  dans  la  loi  Ottomane  de 
1863,  3®.  les  personnes,  qui  par  un  traite  sp&ial  ont  ete  reconnues 
comme  “proteges,”  telles  que  celles  enumerees  par  I’article  4 de  la 
Convention  Franco-Mascataise  de  1844  et  4°.  les  individus  qui  peuvent 
etablir  qu’ils  ont  ete  consideres  et  traites  comme  proteges  par  la  Puis- 
sance en  question  avant  I’annee  dans  laquelle  la  creation  de  nouveaux 
proteges  fut  reglee  et  limitee,  c’est-a-dire  avant  I’annee  1863,  ces  in- 
dividus n’ayant  pas  perdu  leur  status  une  fois  legitimement  acquis, 
Considerant  que,  quoique  les  Puissances  n’aient  renonce  expressis 
verbis  a I’exercice  du  pretendu  droit  de  creer  des  proteges  en  nombre 
illimite  que  par  rapport  a la  Turquie  et  au  Maroc,  neanmoins  I’exer- 
cice de  ce  pretendu  droit  a ete  abandonne  de  meme  par  rapport  aux 
autres  Etats  Orientaux,  I’analogie  ayant  tou jours  ete  reconnue  comme 
un  moyen  de  completer  les  dispositions  ecrites  tres  defectueuses  des 
capitulations,  en  tant  que  les  circonstances  sont  analogues, 

Considerant  d’autre  part  que  la  concession  de  facto  de  la  part  de  la 
Turquie,  de  transmettre  le  status  de  “proteges”  aux  descendants  de 
personnes  qui  en  1863  avaient  joui  de  la  protection  d’une  Puissance 
Chretienne,  ne  peut  etre  etendue  par  analogie  a Mascate,  les  circon- 
stances etant  entierement  differentes,  puisque  les  proteges  des  Etars 
Chretiens  en  Turquie  sont  d’une  race,  nationalite  et  religion  differentes 
de  celles  de  leurs  maitres  Ottomans,  tandis  que  les  habitants  de  Sour 
et  les  autres  Mascatais  qui  pourraient  solliciter  le  pavilion  Frangais, 
se  trouvent  a tons  ces  egards  entierement  dans  la  meme  condition  que 
les  autres  sujets  du  Sultan  de  Mascate, 

Considerant  que  les  dispositions  de  I’article  4 du  Traite  Franco- 
Mascatais  de  1844  s’appliquent  seulement  aux  personnes  qui  sont  bona 


470 


ORIGINAL  TEXTS 


fide  au  service  des  Frangais,  mais  pas  aux  personnes  qui  demandent 
des  litres  de  navires  dans  le  but  d’exercer  quelque  commerce, 

Considerant  que  le  fait  d’avoir  donne  avant  la  ratification  de  la 
Convention  de  Bruxelles  le  2 janvier  1892  des  autorisations  d’arborer 
le  pavilion  Frangais  a des  navires  indigenes  ne  repondant  pas  aux 
conditions  prescrites  par  I’article  32  de  cet  Acte  n’etait  pas  en  con- 
tradiction avec  une  obligation  intemationale  de  la  France, 

Par  ces  Motifs, 
decide  et  prononce  ce  qui  suit: 

1°.  avant  le  2 janvier  1892  la  France  avail  le  droit  d’autoriser  des 
navires  appartenant  a des  sujets  de  Sa  Hautesse  le  Sultan  de  Mas- 
cate  a arborer  le  pavilion  Frangais,  n’etant  liee  que  par  ses  propres  lois 
et  reglements  administratifs ; 

2°.  les  boutriers,  qui  avant  1892  avaient  ete  autorises  par  la  France 
a arborer  le  pavilion  Frangais,  conservent  cette  autorisation  aussi  long- 
temps  que  la  France  la  continue  a celui  qui  I’avait  obtenue; 

3°.  apres  le  2 janvier  1892  la  France  n’avait  pas  le  droit  d’autoriser 
des  navires  appartenant  a des  sujets  de  Sa  Hautesse  le  Sultan  de  Mas- 
cate  a arborer  de  pavilion  Frangais,  que  sous  condition  que  leurs 
proprietaires  ou  armateurs  avaient  ou  auraient  etabli  qu’ils  ont  ete 
consideres  et  traites  par  la  France  comme  ses  “proteges”  avant  I’annee 
1863; 

Quant  a la  2“*  Question  : 

Considerant  que  la  situation  legale  de  navires  portant  des  pavilions 
etrangers  et  des  proprietaires  de  ces  navires  dans  les  eaux  territoriales 
d’un  Etat  Oriental  est  determinee  par  les  principes  generaux  de  juri- 
diction,  par  les  capitulations  ou  autres  traites  et  par  la  pratique  qui  en 
est  resultee, 

Considerant  que  les  termes  du  Traite  d’Amitie  et  de  Commerce 
entre  la  France  et  I’lman  de  Mascate  du  17  novembre  1844  sont,  sur- 
tout  en  raison  des  expressions  employees  dans  Tarticle  3 “Nul  ne 
pourra,  sous  aucun  pretexte,  penetrer  dans  les  maisons,  magasins  et 
autres  proprietes,  possedes  ou  occupes  par  des  Frangais  ou  par  des 
personnes  au  service  des  Frangais,  ni  les  visiter  sans  le  consentemcnt 
de  I’occupant,  a moins  que  ce  ne  soil  avec  I’intervention  du  Consul  de 
France,”  assez  larges  pour  embrasser  aussi  bien  des  navires  que 
d’autres  proprietes, 

Considerant  que,  quoiqu’il  ne  saurait  etre  nie  qu’en  admettant  le 
droit  de  la  France  d’octroyer  dans  certaines  circonstances  son  pavilion 
a des  navires  indigenes  et  de  soustraire  ces  navires  a la  visile  par  les 
autorites  du  Sultan  ou  en  son  nom,  la  traite  des  esclaves  est  facilitee, 
parce  que  les  marchands  d’esclaves  pour  se  soustraire  a la  recherche 
peuvent  facilement  abuser  du  pavilion  Frangais,  la  possibilite  d’un  tel 
abus,  qui  peut  etre  entierement  supprime  par  I’accession  de  toutes  les 
Puissances  a I’article  42  de  I’Acte  de  Bruxelles,  ne  peut  exercer  aucune 
influence  sur  la  decision  de  cette  affaire,  qui  ne  doit  etre  fondee  que 
sur  des  motifs  d’ordre  juridique, 


THE  MUSCAT  DHOWS  CASE 


471 


Considerant  qu’en  vertu  des  articles  31-41  de  I’Acte  de  Bruxelles 
I’octroi  du  pavilion  a un  navire  indigene  est  strictement  limite  a ce 
navire  et  a son  proprietaire  et  que  des  lors  il  ne  peut  etre  transmis  ou 
transfere  a quelque  autre  personne  ni  a quelque  autre  navire,  meme  si 
celui-ci  appartenait  au  meme  proprietaire, 

Considerant  que  I’article  4 du  Traite  Franco-Mascatais  assure  aux 
sujets  de  Sa  Hautesse  le  Sultan  de  Mascate  “qui  seront  au  service  des 
Frangais”  la  meme  protection  qu’aux  Frangais  eux-memes,  mais  con- 
siderant que  les  proprietaires,  commandants  et  equipages  des  boutres 
autorises  a arborer  le  pavilion  Frangais  n’appartiennent  pas  a cette 
categoric  de  personnes  et  encore  moins  les  membres  de  leurs  families, 

Considerant  que  le  fait  de  soustraire  ces  personnes  a la  souverainete, 
specialement  a la  juridiction,  de  Sa  Hautesse  le  Sultan  de  Mascate 
serait  en  contradiction  avec  la  Declaration  du  10  mars  1862,  par  la- 
quelle  la  France  et  la  Grande  Bretagne  se  sont  engagees  reciproque- 
ment  a respecter  I’independance  de  ce  Prince, 

Par  ces  Motifs, 
decide  et  prononce  ce  qui  suit: 

1°.  les  boutres  (“dhows”)  de  Mascate  qui  ont  ete  auto  rises,  ainsi 
qu’il  a ete  indique  ci-dessus,  a arborer  le  pavilion  Frangais,  ont  dans 
les  eaux  territoriales  de  Mascate  le  droit  a I’inviolabilite,  reglee  par  le 
Traite  Franco-Mascatais  du  17  novembre  1844; 

2°.  I’autorisation  d’arborer  le  pavilion  Frangais  ne  peut  etre  trans- 
mise  ou  transferee  a quelque  autre  personne  ou  a quelque  autre  boutre 
(“dhow”),  meme  si  celui-ci  appartenait  au  meme  proprietaire; 

3®.  les  sujets  du  Sultan  de  Mascate,  qui  sont  proprietaires  ou  com- 
mandants de  boutres  (“dhows”)  autorises  a arborer  le  pavilion  Fran- 
gais ou  qui  sont  membres  des  equipages  de  tels  boutres  ou  qui  ap- 
partiennent  a leurs  families  ne  jouissent  en  consequence  de  ce  fait 
d’aucun  droit  d’exterritorialite,  qui  pourrait  les  exempter  de  la  souve- 
rainete,  sp&ialement  de  la  juridiction,  de  Sa  Hautesse  le  Sultan  de 
Mascate. 

Fait  a La  Haye,  dans  THotel  de  la  Cour  permanente  d’Arbitrage, 
le  8 aout  1905. 

(Signe)  H.  Lammasch 

“ Melville  W.  Fuller 

“ A.  F.  DE  Savornin  Lohman 


Agreement  for  Arbitration,  October  i^,  1904^ 

Attendu  que  le  Gouvernement  Frangais  et  celui  de  Sa  Majeste 
Britannique  ont  juge  convenable,  par  la  Declaration  du  10  mars  1862, 
“de  s’engager  reciproquement  a respecter  I’independance”  de  Sa 
Hautesse  le  Sultan  de  Mascate; 


lOflficial  report,  p.  5. 


472 


ORIGINAL  TEXTS 


Attendu  que  des  difficultes  se  sont  elevees  sur  la  portee  de  cette 
Declaration  relativement  a la  delivrance,  par  la  Republique  Frangaise, 
a certains  sujets  de  Sa  Hautesse  le  Sultan  de  Mascate  de  pieces  les 
autorisant  a arborer  le  pavilion  Frangais,  ainsi  qu’au  sujet  de  la  nature 
des  privileges  et  immunites  revendiques  par  les  sujets  de  Sa  Hautesse, 
proprietaires  ou  commandants  de  boutres  (“dhows”)  qui  sont  en 
possession  de  semblables  pieces  ou  qui  sont  membres  de  I’equipage 
de  ces  boutres  et  leurs  families,  particulierement  en  ce  qui  concerne  le 
mode  suivant  lequel  ces  privileges  et  ces  immunites  affectent  le  droit 
de  juridiction  de  Sa  Hautesse  le  Sultan  sur  ses  dits  sujets : 

Les  soussignes,  dument  autorises  a cet  effet  par  leurs  Gouvernements 
respectifs,  conviennent,  par  les  presentes,  que  ces  difficultes  seront 
tranchees  par  voie  d’arbitrage  conformement  a I’Article  I de  la  Con- 
vention intervenue  entre  les  deux  pays,  le  14  octobre  dernier,  et  que 
la  decision  du  Tribunal  de  La  Haye  sera  definitive. 

II  est  aussi  convenu  par  les  presentes  de  ce  qui  suit : 

Article  I 

Chacune  des  Hautes  Parties  Contractantes  nommera  un  Arbitre,  et 
ces  deux  Arbitres  ensemble  choisiront  un  Surarbitre ; si,  dans  le  delai 
d’un  mois  a partir  de  leur  nomination,  ils  ne  peuvent  tomber  d’accord, 
le  choix  d’un  Surarbitre  sera  confie  a Sa  Majeste  le  Roi  d’ltalie.  Les 
Arbitres  et  le  Surarbitre  ne  seront  pas  sujets  ou  citoyens  de  I’une  ou 
I’autre  des  Hautes  Parties  Contractantes  et  seront  choisis  parmi  les 
membres  de  la  Cour  de  La  Haye. 

Article  II 

Chacune  des  Hautes  Parties  Contractantes  devra,  dans  un  delai  de 
trois  mois  apres  la  signature  du  present  Compromis,  remettre  a chaque 
membre  du  Tribunal  constitue  par  les  presentes,  et  a I’autre  Partie, 
un  Memoire  ecrit  ou  imprime  exposant  et  motivant  sa  reclamation  et 
un  dossier  ecrit  ou  imprime  contenant  les  documents  ou  toutes  autres 
pieces  probantes  ecrites  ou  imprimees  sur  lesquelles  il  s’appuie. 

Dans  les  trois  mois  de  la  remise  des  dits  Memoires,  chacune  des 
Hautes  Parties  remettra  a chaque  membre  du  Tribunal  et  a I’autre 
Partie  un  Contre-Memoire  ecrit  ou  imprime,  avec  les  pieces  a I’appui. 

Dans  le  mois  de  la  remise  des  Contre-Memoires,  chaque  Partie 
pourra  remettre  a chaque  Arbitre  et  a I’autre  Partie  des  conclusions 
ecrites  ou  imprimees,  a I’appui  des  propositions  qu’elle  aurait  mises 
en  avant. 

Les  delais  fixes  par  le  present  Compromis  pour  la  remise  du 
Memoire,  du  Contre-Memoire,  et  des  conclusions  pourront  etre  pro- 
longes  d’un  commun  accord  par  les  Parties  Contractantes. 

Article  III 

Le  Tribunal  se  reunira  a La  Haye,  dans  la  quinzaine  de  la  remise 
des  Arguments. 

Chaque  Partie  sera  representee  par  un  Agent. 


THE  MUSCAT  DHOWS  CASE 


473 


Le  Tribunal  pourra,  s’il  juge  necessaire  de  plus  amples  eclaircisse- 
ments  en  ce  qui  regarde  un  point  quelconque,  demander,  a chaque 
Agent,  une  explication  orale  ou  par  ecrit ; mais,  en  pareil  cas,  I’autre 
Partie  aura  le  droit  de  repliquer. 

Article  IV 

La  decision  du  Tribunal  sera  rendue  dans  les  trente  jours  qui 
suivront  sa  reunion  a La  Haye  ou  la  remise  des  explications  qui 
auraient  ete  fournies  a sa  demande,  a moins  que,  a la  requete  du 
Tribunal,  les  Parties  Contractantes  ne  conviennent  de  prolonger  le 
delai. 

Article  V 

Les  dispositions  de  la  Convention  de  La  Haye,  du  29  juillet  1899, 
s’appliqueront  a tous  les  points  non  prevus  par  le  present  Compromis. 

Fait,  en  double  exemplaire,  a Londres,  le  13  octobre  1904. 

(L.-S.)  Paul  Cambon 
(L.-S.)  Lansdowne 


Extract  from  the  Treaty  of  Friendship  and  Commerce  of  November 
ly,  1844,  between  France  and  the  Iman  of  MuscaF 

III.  Les  Frangais  auront  la  faculte  d’acheter,  de  vendre  ou  de 
prendre  a bail  des  terres,  maisons,  magasins,  dans  les  Etats  de  Son 
Altesse  le  Sultan  de  Mascate.  Nul  ne  pourra,  sous  aucun  pretexte 
penetrer  dans  les  maisons,  magasins  et  autres  proprietes,  possedes  ou 
occupes  par  des  Frangais  ou  par  des  personnes  au  service  des  Frangais, 
ni  les  visiter  sans  le  consentement  de  I’occupant,  a moins  que  ce  ne 
soit  avec  I’intervention  du  Consul  de  France. 

Les  Frangais  ne  pourront,  sous  aucun  pretexte,  etre  retenus  centre 
leur  volante  dans  les  Etats  du  Sultan  de  Mascate. 

IV.  Les  sujets  de  Son  Altesse  le  Sultan  de  Mascate  qui  seront  au 
service  des  Frangais  jouiront  de  la  meme  protection  que  les  Frangais 
eux-memes ; mais,  si  les  sujets  de  Son  Altesse  sont  convaincus  de 
quelque  crime  ou  infraction  punissable  par  la  loi,  ils  seront  congedies 
par  les  Frangais  au  service  desquels  ils  se  trouverait,  et  livres  aux 
autorites  locales. 


Declaration  of  March  10,  1862,  between  France  and  Great  Britain  re- 
specting the  Independence  of  the  Sultans  of  Muscat  and  Zanzibar^ 

S.  M.  I’Empereur  des  Frangais  et  S.  M.  la  Reine  du  Royaume-Uni 
de  la  Grande-Bretagne  et  dTrlande,  prenant  en  consideration  I’impor- 
tance  qui  s’attache  au  maintien  de  I’independance  du  Sultan  de  Mascate 


'^British  and  Foreign  State  Papers,  vol.  35,  p.  1011. 

^Martens,  Nouveau  Recueil  General  de  Traites,  3d  series,  vol.  4,  p.  768. 


474 


ORIGINAL  TEXTS 


d’une  part,  et  du  Sultan  de  Zanzibar  de  I’autre,  ont  juge  convenable  de 
s’engager  reciproquement  a respecter  I’independance  de  ces  deux 
Princes. 

Les  soussigpies  Ministre  des  Affairs  Etrangeres  de  S.  M.  I’Empereur 
des  Frangais  et  Ambassadeur  Extraordinaire  de  S.  M.  Britannique 
pres  la  Cour  de  France,  etant  munis  de  pouvoirs  a cet  effet,  declarent 
en  consequence,  par  le  present  acte,  que  leurs  dites  Majestes  prennent 
reciproquement  I’engagement  indique  ci-dessus. 

En  foi  de  quoi,  les  soussignes  ont  signe  en  double  la  presente  decla- 
ration et  y ont  appose  le  cachet  de  leurs  armes. 

Fait  a Paris,  le  10  mars  1862. 

E.  Thoxtvenel  Cowley 


Extract  from  the  General  Act  of  Brussels  of  July  2,  i8qo,  for  the 
Suppression  of  the  African  Slave  Trade^ 

Section  II.  Reglement  Concernant  l^Usage  du  Pavillon  et  la 
Surveillance  des  Croiseurs 

1.  Regles  Pour  la  Concession  du  Pavillon  aux  Batiments  In- 
digenes, LE  Role  d'Equipage,  et  le  Manifeste  des  Passagers 
Noirs 

XXX.  Les  Puissances  Signataires  s’engagent  a exercer  une  sur- 
veillance rigoureuse  sur  les  batiments  indigenes  autorises  a porter  leur 
pavilion  dans  la  zone  indiquee  a I’Article  XXI,  et  sur  les  operations 
commerciales  effectuees  par  ces  batiments. 

XXXI.  La  qualification  de  batiment  indigene  s’applique  aux  navires 
qui  remplissent  une  des  deux  conditions  suivantes : 

1.  Presenter  les  signes  exterieurs  d’une  construction  ou  d’un 
greement  indigene. 

2.  Etre  montes  par  un  equipage  dont  le  capitaine  et  la  majorite  des 
matelots  soient  originaires  d’un  des  pays  baignes  par  les  eaux  de 
rOcean  Indien,  de  la  Mer  Rouge,  ou  du  Golfe  Persique. 

XXXII.  L’autorisation  d’aborder  le  pavilion  d’une  des  dites  Puis- 
sances ne  sera  accordee  a I’avenir  qu’aux  batiments  indigenes  qui  satis- 
feront  a la  fois  aux  trois  conditions  suivantes; 

1.  Les  armateurs  ou  proprietaires  devront  etre  sujets  ou  prot%es  de 
la  Puissance  dont  ils  demandent  a porter  les  couleurs; 

2.  Ils  seront  tenus  d’etablir  qu’ils  possedent  des  biens-fonds  dans  la 
circonscription  de  I’autorite  a qui  est  adressee  leur  demande,  ou  de 
foumir  une  caution  solvable  pour  la  garantie  des  amendes  qui  pour- 
raient  etre  eventuellement  encourues  ; 

3.  Les  dits  armateurs  ou  proprietaires,  ainsi  que  le  capitaine  du 
batiment,  devront  fournir  la  preuve  qu’ils  jouissent  d’une  bonne 
reputation  et  notamment  n’avoir  jamais  ete  I’objet  d’une  condamna- 
tion  pour  faits  de  Traite. 


^British  and  Foreign  State  Papers,  vol.  82,  p.  65. 


THE  MUSCAT  DHOWS  CASE 


475 


XXXIII.  L’autorisation  accordee  devra  etre  renouvelee  chaque 
annee.  Elle  pourra  tou jours  etre  suspendue  ou  retiree  par  les  autorites 
de  la  Puissance  dont  le  batiment  porte  les  couleurs. 

XXXIV.  L’acte  d’autorisation  portera  les  indications  necessaires 
pour  etablir  I’identite  du  navire.  Le  capitaine  en  sera  detenteur.  Le 
nom  du  batiment  indigene  et  I’indication  de  son  tonnage  devront  etre 
incrustes  et  peints  en  caracteres  Latins  a la  poupe,  et  la  ou  les  lettres 
initiales  de  son  port  d’attache,  ainsi  que  le  numero  d’enregistrement 
dans  la  serie  des  numeros  de  ce  port,  seront  imprimes  en  noir  sur 
les  voiles. 

XXXV.  Un  role  d’equipage  sera  delivre  au  capitaine  du  batiment 
au  port  de  depart  par  I’autorite  de  la  Puissance  dont  il  porte  le  pavilion. 
II  sera  renouvele  a chaque  armement  du  batiment  ou,  au  plus  tard,  au 
bout  d’une  annee,  et  conformement  aux  dispositions  suivantes : 

1.  Le  role  sera,  au  moment  du  depart,  vise  par  I’autorite  qui  I’a 
ddivre. 

2.  Aucun  noir  ne  pourra  etre  engage  comme  matelot  sur  un  batiment 
sans  qu’il  ait  ete  prealablement  interroge  par  Tautorite  de  la  Puissance 
dont  ce  batiment  porte  le  pavilion,  ou,  a defaut  de  celle-ci,  par  I’autorite 
territoriale,  a Teffet  d’etablir  qu’il  contracte  un  engagement  libre. 

3.  Cette  autorite  tiendra  la  main  a ce  que  la  proportion  des  matelots 
ou  mousses  ne  soit  pas  anormale  par  rapport  au  tonnage  ou  au  greement 
des  batiments. 

4.  L’autorite  qui  aura  interroge  les  hommes  prealablement  a leur 
depart  les  inscrira  sur  le  role  d’equipage,  ou  ils  figureront  avec  le 
signalement  sommaire  de  chacun  d’eux  en  regard  de  son  nom. 

5.  Afin  d’empecher  plus  surement  les  substitutions,  les  matelots 
pourront,  en  outre,  etre  pourvus  d’une  marque  distinctive. 

XXXVI.  Lorsque  le  capitaine  du  batiment  desirera  embarquer  des 
passagers  noirs,  il  devra  en  faire  la  declaration  a I’autorite  de  la  Puis- 
sance dont  il  porte  le  pavilion,  ou,  a defaut  de  celle-ci,  a I’autorite  terri- 
toriale. Les  passagers  seront  interroges,  et,  quand  il  aura  ete  constate 
qu’ils  s’embarquent  librement,  ils  seront  inscrits  sur  un  manifesto 
special  donnant  le  signalement  de  chacun  d’eux  en  regard  de  son  nom, 
et  indiquant  notamment  le  sexe  et  la  taille.  Les  enfants  noirs  ne  pour- 
ront etre  admis  comme  passagers  qu’autant  qu’ils  seront  accompagnes 
de  leurs  parents  ou  de  personnes  dont  I’honorabilite  serait  notoire. 
Au  depart  le  manifesto  des  passagers  sera  vise  par  I’autorite  indiquee 
ci-dessus,  apres  qu’il  aura  ete  procede  a un  appel.  S’il  n’y  a pas  de 
passagers  a bord,  mention  expresse  en  sera  faite  sur  le  role  d’equipage. 

XXXVII.  A I’arrivee  dans  tout  port  de  relache  ou  de  destination, 
le  capitaine  du  batiment  produira  devant  I’autorite  de  la  Puissance  dont 
il  porte  le  pavilion,  ou,  a defaut  de  celle-ci,  devant  I’autorite  terri- 
toriale, le  role  d’equipage  et,  s’il  y a lieu,  les  manifestes  de  passagers 
anterieurement  delivres.  L’autorite  controlera  les  passagers  arrives  a 
destination  ou  s’arretant  dans  un  port  de  relache,  et  fera  mention  de 
leur  debarquement  sur  le  manifesto.  Au  depart,  la  memo  autorite 
apposera  de  nouveau  son  visa  au  role  et  au  manifeste,  et  fera  I’appel 
des  passagers. 


476 


ORIGINAL  TEXTS 


XXXVIII.  Sur  le  littoral  Africain  et  dans  les  lies  adjacentes,  aucun 
passager  noir  ne  sera  embarque  a bord  d’un  batiment  indigene  en 
dehors  des  localites  ou  reside  une  autorite  relevant  d’une  des  Puis- 
sances Signataires. 

Dans  toute  I’etendue  de  la  zone  prevue  a 1’ Article  XXI,  aucun 
passager  noir  ne  pourra  etre  debarque  d’un  batiment  indigene  hors 
d’une  localite  ou  reside  une  autorite  relevant  d’une  des  Hautes 
Parties  Contractantes  et  sans  que  cette  autorite  assiste  au  debarque- 
ment. 

Les  cas  de  force  majeure  qui  auraient  determine  Tin  fraction  a ces 
dispositions  devront  etre  examines  par  I’autorite  de  la  Puissance  dont 
le  batiment  porte  les  couleurs,  ou,  a defaut  de  celle-ci,  par  I’autorite 
territoriale  du  port  dans  lequel  le  batiment  inculpe  fait  relache. 

XXXIX.  Les  prescriptions  des  Articles  XXXV,  XXXVI,  XXXVII, 
et  XXXVIII  ne  sont  pas  applicables  aux  bateaux  non  pontes  entiere- 
ment,  ayant  un  maximum  de  10  hommes  d’equipage,  et  qui  satisferont 
a I’une  des  deux  conditions  suivantes : 

1.  S’adonner  exclusivement  a la  pieche  dans  les  eaux  territoriales ; 

2.  Se  livrer  au  petit  cabotage  entre  les  differentes  ports  de  la  meme 
Puissance  territoriale,  sans  s’eloigner  de  la  cote  a plus  de  5 milles. 

Ces  differents  bateaux  recevront,  suivant  les  cas,  de  I’autorite  terri- 
toriales ou  de  I’autorite  Consulaire,  une  licence  speciale,  renouvelable 
chaque  annee  et  revocable  dans  les  conditions  prevues  a I’Article  XL, 
et  dont  le  modele  uniforme,  annexe  au  present  Acte  General,  sera  com- 
munique au  Bureau  International  de  Renseignements. 

XL.  Tout  acte  ou  tentative  de  Traite,  legalement  constate  a la  charge 
du  capitaine,  armateur,  ou  proprietaire  d’un  batiment  autorise  a porter 
le  pavilion  d’une  des  Puissances  Signataires,  ou  ayant  obtenu  la  licence 
prevue  a I’Article  XXXIX,  entrainera  le  retrait  immediat  de  cette 
autorisation  ou  de  cette  licence.  Toutes  les  infractions  aux  prescriptions 
du  paragraphe  2 du  Chapitre  III  seront  punies,  en  outre,  des  penalites 
edictees  par  les  Lois  et  Ordonnances  speciales  a chacune  des  Puissances 
Contractantes. 

XLI.  Les  Puissances  Signataires  s’engagent  a deposer  au  Bureau 
International  de  Renseignements  les  modeles  types  des  documents  ci- 
apres : 

1.  Titre  autorisant  le  port  du  pavilion. 

2.  Role  d’equipage. 

3.  Manifeste  des  passagers  noirs. 

Ces  documents,  dont  la  teneur  peut  varier  suiyant  les  Reglements 
propres  a chaque  pays,  devront  renfermer  obligatoirement  les  renseigne- 
ments suivants,  libelles  dans  une  langue  Europeenne: 

1.  En  ce  qui  concerne  I’autorisation  de  porter  le  pavilion: 

(a)  Le  nom,  le  tonnage,  le  greement,  et  les  dimensions  principales 
du  batiment ; 

(b)  Le  numero  d’inscription  et  la  lettre  signaletique  du  port 
d’attache ; 

(c)  La  date  de  I’obtention  du  permis  et  la  qualite  du  fonctionnaire 
qui  I’a  delivre. 


THE  MUSCAT  DHOWS  CASE 


477 


2.  En  ce  qui  concerne  le  role  d’equipage : 

(a)  Le  nom  du  batiment,  du  capitaine,  et  de  I’armateur  ou  des  pro- 
prietaires ; 

(b)  Le  tonnage  du  batiment; 

(c)  Le  numero  d’inscription  et  le  port  d’attache  du  navire,  sa 
destination,  ainsi  que  les  renseignements  specifies  a I’Article  XXV. 

3.  En  se  qui  concerne  le  manifeste  des  passagers  noirs ; 

Le  nom  du  batiment  qui  les  transporte  et  les  renseignements  indiques 
a I’Article  XXXVI,  et  destines  a bien  identifier  les  passagers. 

Les  Puissances  Signataires  prendront  les  mesures  necessaires  pour 
que  les  autorites  territoriales,  ou  leurs  Consuls,  envoient  au  meme 
Bureau  des  copies  certifiees  de  toute  autorisation  d’arborer  leur 
pavilion,  des  qu’elle  aura  ete  accordee,  ainsi  que  Tavis  du  retrait  dont 
ces  autorisations  auraient  ete  I’objet. 

Les  dispositions  du  present  Article  ne  concernent  que  les  papiers 
destines  aux  batiments  indigenes. 


Supplementary  Agreement  of  January  ij,  1905,  to  the  Agreement  for 

Arbitration^ 

La  constitution  du  Tribunal  Arbitral  institue  par  le  Compromis  signe 
a Londres  le  13  Octobre,  1904,  ayant  ete  retardee  de  quelques  jours  par 
suite  de  circonstances  independantes  de  la  volonte  des  Hautes  Parties 
Contractantes,  le  Gouvernement  de  Sa  Majeste  Britannique  et  le 
Gouvernement  de  la  Republique  Frangaise  ont  juge  utile,  d’un  commun 
accord,  d’user  de  la  faculte  qui  leur  est  accordee  dans  le  4®  paragraphe 
de  TArticle  II  du  dit  Compromis  de  prolonger  le  delai  fixe  pour  la 
remise  du  Memoire. 

Ils  conviennent,  en  consequence,  par  les  presentes,  de  fixer  au  I**' 
Fevrier  la  date  a laquelle  les  membres  du  Tribunal  Arbitral  et  les  deux 
Gouvernements  interesses  recevront  communication  du  Memoire  ou 
du  dossier  presente  par  les  Parties. 

II  est  egalement  entendu  que  les  delais  success! fs  prevus  a I’Article 
II  du  Compromis  pour  la  procedure  Arbitrale  courrorrt  du  1®''  Fevrier 
au  lieu  du  13  Janvier,  date  qui  resultait  des  termes  de  I’Accord  signe 
le  13  Octobre,  1904,  par  M.  Paul  Cambon  et  Lord  Lansdowne. 

Fait  a Londres,  en  double  exemplaire,  le  13  Janvier,  1905. 

(L.  S.)  Paul  Cambon 
(L.  S.)  Lansdowne 


Supplementary  Agreement  of  May  19,  1905  to  the  Agreement  for 

Arbitration^ 

La  constitution  du  Tribunal  Arbitral  institue  par  le  Compromis 
signe  a Londres  le  13  Octobre,  1904,  ayant  ete  retardee  de  quelques 
jours  par  suite  de  circonstances  independantes  de  la  volonte  des 


^Official  report,  p.  9. 
^Ibid.,  p.  11. 


478 


ORIGINAL  TEXTS 


Hautes  Parties  Contractantes,  le  Gouvernement  de  la  Republique 
Frangaise  et  le  Gouvernement  de  Sa  Majeste  Britannique  ont  juge 
utile,  d’un  commun  accord,  d’user  de  la  faculte  qui  leur  est  accordee 
par  le  quatrieme  paragraphe  de  I’Article  II  dudit  Compromis  de  pro- 
longer  le  delai  fixe  pour  la  remise  des  Conclusions. 

Ils  conviennent,  en  consequence,  par  les  presentes,  de  laisser  au 
Tribunal  Arbitral  le  soin  de  fixer  la  date  a laquelle  les  membres  dudit 
Tribunal  et  les  deux  Gouvemements  interesses  recevront  communica- 
tion des  Conclusions  presentees  par  les  Parties. 

Cet  Accord  additionnel  sera  communique  au  Tribunal  Arbitral  par 
les  soins  du  Bureau  International  de  la  Cour  Permanente  d’Arbitrage. 

Fait  a Londres,  en  double  exemplaire,  le  19  Mai,  1905. 

(L.  S.)  Paul  Cambon 
(L.  S.)  Lansdowne 


THE  CASABLANCA  CASE 


Award  of  the  Tribunal,  May  22, 

Considerant  que,  par  un  Protocole  du  10  novembre  1908  et  par  un 
Compromis  du  24  du  meme  mois,  le  Gouvernement  de  la  Republique 
frangaise  et  le  Gouvernement  imperial  allemand  se  sont  mis  d’accord 
pour  charger  un  Tribunal  arbitral,  compose  de  cinq  membres,  de 
resoudre  les  questions  de  fait  et  de  droit  que  soulevent  les  evenements 
qui  se  sont  produits  a Casablanca,  le  25  septembre  1908,  entre  des 
agents  des  deux  pays ; 

Considerant  que,  en  execution  de  ce  Compromis,  les  deux  Gouveme- 
ments  ont  designe  respectivement  comme  Arbitres, 

le  Gouvernement  de  la  Republique  frangaise:  le  tres  honorable  Sir 
Edward  Fry,  Docteur  en  droit,  autrefois  siegeant  a la  Cour  d’appel, 
Membre  du  Conseil  prive  du  Roi,  Membre  de  la  Cour  permanente 
d’Arbitrage,  et  M.  Louis  Renault,  Membre  de  ITnstitut  de  France, 
Ministre  plenipotentiaire,  Professeur  a la  Faculte  de  droit  de  Paris, 
Jurisconsulte  du  Ministere  des  Affaires  Etrangeres,  Membre  de  la 
Cour  permanente  d’Arbitrage ; 

et  le  Gouvernement  imperial  allemand : M.  Guido  Fusinato,  Doc- 

teur en  droit,  ancien  Ministre  de  I’lnstruction  publique,  ancien  Pro- 
fesseur de  droit  international  a I’Universite  de  Turin,  Depute  au 
Parlement  italien,  Conseiller  d’Etat,  Membre  de  la  Cour  permanente 
d’Arbitrage,  et  M.  Kriege,  Docteur  en  droit,  Conseiller  actuel  intime 
de  Legation,  Conseiller  rapporteur  et  Jurisconsulte  au  Departement 
des  Affaires  Etrangeres,  Membre  de  la  Cour  permanente  d’Arbitrage ; 

Que  les  Arbitres  ainsi  designes  charges,  de  nommer  un  Surarbitre, 
ont  choisi  comme  tel  M.  K.  Hj.  L.  de  Hammarskjold,  Docteur  en  droit, 
ancien  Ministre  de  la  Justice,  ancien  Ministre  des  Cultes  et  de 
rinstruction  publique,  ancien  Envoye  extraordinaire  et  Ministre  pleni- 
potentiaire a Copenhag^e,  ancien  President  de  la  Cour  d’Appel  de 
Jonkoping,  ancien  Professeur  a la  Faculte  de  droit  d’Upsal,  Gouverneur 
de  la  Province  d’Upsal,  Membre  de  la  Cour  permanente  d’Arbitrage ; 

Considerant  que,  conformement  aux  dispositions  du  Compromis  du 
24  novembre  1908,  les  memoires  et  contre-memoires  ont  ete  dument 
echanges  entre  les  Parties  et  communiques  aux  Arbitres ; 

Considerant  que  le  Tribunal,  constitue  comme  il  est  dit  ci-dessus, 
s’est  reuni  a La  Haye  le  1®''  mai  1909 ; 

Que  les  deux  Gouvemements  ont  respectivement  designe  comme 
Agents, 

le  Gouvernement  de  la  Republique  frangaise:  M.  Andre  Weiss, 

Professeur  a la  Faculte  de  droit  de  Paris,  Jurisconsulte  adjoint  du 
Ministere  des  Affaires  Etrangeres, 


^Official  report,  p.  153. 


480 


ORIGINAL  TEXTS 


et  le  Gouvernement  imperial  allemand : M.  Albrecht  Lentze,  Doc- 
teur  en  droit,  Conseiller  intime  de  Legation,  Conseiller  rapporteur  au 
Departement  des  Affaires  Etrangeres ; 

Considerant  que  les  Agents  des  Parties  ont  presente  au  Tribunal  les 
conclusions  suivantes : 

savoir,  I’Agent  du  Gouvernement  de  la  Republique  frangaise : 
Plaise  au  Tribunal, 

Dire  et  juger  que  c’est  a tort  que  le  Consul  et  les  agents  du  Consulat 
imperial  allemand  a Casablanca  ont  tente  de  faire  embarquer  sur  un 
navire  allemand  des  deserteurs  de  la  Legion  etrangere  frangaise,  ne 
ressortissant  pas  a la  nationalite  allemande ; 

Dire  et  juger  que  c’est  a tort  que  le  meme  Consul  et  les  memes 
agents  ont,  dans  les  memes  conditions,  accorde,  sur  le  territoire  occupe 
par  le  corps  de  debarquement  frangais  a Casablanca,  leur  protection  et 
leur  assistance  materielle  a trois  autres  legionnaires,  qu’ils  croyaient 
ou  qu’ils  pouvaient  croire  Allemands,  meconnaissant  ainsi  les  droits 
exclusifs  de  juridiction  qui  appartiennent  a I’Etat  occupant,  en  territoire 
etranger,  meme  en  pays  de  Capitulations,  au  regard  des  soldats  de 
I’armee  d’occupation,  et  des  actes,  quels  qu’ils  soient  et  d’ou  qu’ils 
viennent,  qui  sont  de  nature  a compromettre  sa  securite ; 

Dire  et  juger  qu’aucune  atteinte  n’a  ete  portee,  en  la  personne  de 
M.  Just,  chancelier  du  Consulate  imp>erial  a Casablanca,  et  du  soldat 
marocain  Abd-el-Kerim  ben  Mansour,  a I’inviolabilite  consulaire,  par 
les  oflficiers,  soldats  et  marins  frangais  qui  ont  procede  a I’arrestation 
des  deserteurs ; et  qu’en  repoussant  les  attaques  et  les  voies  de  fait 
dirigees  contre  eux,  lesdits  oflficiers,  soldats  et  marins  se  sont  bornes 
a user  du  droit  de  legitime  defense. 

Et  I’Agent  du  Gouvernement  imperial  allemand  {conclusions  tra- 
duites) , 

Plaise  aU  Tribunal, 

1°.  En  ce  qui  concerne  les  questions  de  fait. 

Declarer  que  trois  individus  qui  avaient  anterieurement  servi  dans 
la  Legion  etrangere  frangaise,  Walter  Bens,  Heinrich  Heinemann  et 
Julius  Meyer,  tous  trois  Allemands,  ont,  le  25  septembre  1908,  au  port 
de  Casablanca,  pendant  qu’ils  etaient  accompagnes  par  des  agents  de 
I’Allemagne,  ete  violemment  arraches  a ces  demiers  et  arretes  par  des 
agents  de  la  France;  qu’a  cette  occasion  des  agents  de  I’Allemagne  ont 
ete  attaques,  maltraites,  outrages  et  menaces  par  des  agents  de  la 
France ; 

2°.  En  ce  qui  concerne  les  questions  de  droit. 

Declarer  que  les  trois  individus  mentionnes  au  No.  1 etaient,  au  25 
septembre  1908,  sounds  exclusivement  a la  juridiction  et  a la  pro- 
tection du  Consulat  imperial  allemand  a Casablanca ; que  des 
agents  de  la  France  n’etaient  pas  alors  autorises  a entraver  I’exercice 
par  des  agents  de  I’Allemagne  de  la  protection  allemande  sur  ces  trois 
individus  et  a revendiquer  de  leur  cote  sur  eux  un  droit  de  juridiction ; 


THE  CASABLANCA  CASE 


481 


3°.  En  ce  qui  concerne  la  situation  des  individus  arretes  le  25  sep- 
tembre  1908  au  sujet  de  laquelle  il  y a contestation, 

Decider  que  le  Gouvernement  de  la  Republique  frangaise,  aussitot 
que  possible,  se  dessaisira  des  trois  Allemands  designes  au  No.  1 et 
les  mettra  a la  disposition  du  Gouvernement  allemand. 

Considerant  que  I’Agent  de  la  Republique  frangaise  a,  dans  I’audi- 
ence  du  17  mai  1909,  declare  que,  dans  ses  conclusions,  il  ne  s’agit,  soit 
pour  les  deserteurs  de  nationalite  allemande,  soit  pour  les  autres,  que 
des  mesures  prises  par  des  agents  allemands  apres  la  desertion  et  en 
vue  de  faire  embarquer  les  deserteurs ; 

Considerant  qu’apres  que  le  Tribunal  eut  entendu  les  exposes  oraux 
des  Agents  des  Parties  et  les  explications  qu’ils  lui  ont  foumies  sur  sa 
demande,  les  debats  ont  ete  declares  clos  dans  I’audience  du  17  mai 
1909; 

Considerant  que,  d’apres  le  regime  des  Capitulations  en  vigueur  au 
Maroc,  I’autorite  consulaire  allemande  exerce,  en  regie  generale,  une 
juridiction  exclusive  sur  tous  les  ressortissants  allemands  qui  se  trou- 
vent  dans  ce  pays ; 

Considerant  que,  d’autre  part,  un  corps  d’occupation  exerce  aussi, 
en  regie  generale,  une  juridiction  exclusive  sur  toutes  les  personnes 
appartenant  audit  corps  d’occupation ; 

Que  ce  droit  de  juridiction  doit  etre  reconnu,  tou jours  en  regie 
generale,  meme  dans  les  pays  soumis  au  regime  des  Capitulations ; 

Considerant  que,  dans  le  cas  ou  des  ressortissants  d’une  Puissance 
qui  beneficie  au  Maroc  du  regime  des  Capitulations  appartiennent  au 
corps  d’occupation  envoye  dans  ce  pays  par  une  autre  Puissance,  il  se 
produit,  par  la  force  des  choses,  un  conflt  entre  les  deux  juri dictions 
sus-indiquees ; 

Considerant  que  le  Gouvernement  fran^ais  n’a  pas  fait  connaitre  la 
composition  du  corps  expeditionnaire  et  n’a  pas  declare  que  le  fait  de 
I’occupation  militaire  modifiait  la  juridiction  consulaire  exclusive 
decoulant  du  regime  des  Capitulations ; que,  d’autre  part,  le  Gouverne- 
ment allemand  n’a  pas  reclame  au  sujet  de  I’emploi  au  Maroc  de  la 
Legion  etrangere  qui,  notoirement,  est,  pour  une  certaine  partie,  com- 
posee  de  ressortissants  allemands ; 

Considerant  qu’il  n’appartient  pas  a ce  Tribunal  d’emettre  une 
opinion  sur  I’organisation  de  la  Legion  etrangere  ou  sur  son  emploi  au 
Maroc ; 

Considerant  que  le  conflit  de  juridictions  dont  il  a ete  parle  ne  saurait 
etre  decide  par  une  regie  absolue  qui  accorderait  d’une  maniere 
generale  la  preference,  soit  a I’une,  soit  a I’autre  des  deux  juridictions 
concurrentes ; 

Que,  dans  chaque  cas  particulier,  il  faut  tenir  compte  des  circon- 
stances  de  fait  qui  sont  de  nature  a determiner  la  preference; 

Considerant  que  la  juridiction  du  corps  d’occupation  doit,  en  cas  de 
conflit,  avoir  la  preference,  lorsque  les  personnes  appartenant  a ce 
corps  n’ont  pas  quitte  le  territoire  place  sous  la  domination  immediate, 
durable  et  effective  de  la  force  armee ; 


482 


ORIGINAL  TEXTS 


Considerant  qu’a  Tepoque  dont  il  s’agit,  la  ville  fortifiee  de  Casa- 
blanca etait  militairement  occupee  et  gardee  par  des  forces  militaires 
frangaises  qui  constituaient  la  g^rnison  de  cette  ville  et  se  trouvaient, 
soit  dans  la  ville  meme,  soit  dans  les  camps  environnants ; 

Considerant  que,  dans  ces  conditions,  les  deserteurs  de  nationalite 
allemande,  appartenant  aux  forces  militaires  de  Tun  de  ces  camps  et 
etant  dans  Tenceinte  de  la  ville,  restaient  soumis  a la  juridiction  mili- 
taire  exclusive; 

Considerant,  d’autre  part,  que,  la  question  de  la  competence  re- 
spective en  pays  de  Capitulations,  de  la  juridiction  consulaire  et  de  la 
juridiction  militaire  etant  tres  compliquee  et  n’ayant  pas  regu  de  solu- 
tion expresse  nette  et  universellement  reconnue,  Tautorite  consulaire 
allemande  ne  saurait  encourir  aucun  blame  pour  avoir  accorde  sa  pro- 
tection aux  deserteurs  susnommes,  qui  I’avaient  sollicitee ; 

Considerant  que  le  Consul  allemand  a Casablanca  n’a  pas  accorde 
la  protection  du  Consulat  aux  deserteurs  de  nationalite  non  allemande 
et  que  le  drogman  du  Consulat  n’a  pas  non  plus  depasse  a ce  sujet  les 
limites  de  sa  competence ; 

Considerant  que  le  fait  que  le  Consul  a signe,  sans  le  lire,  le  sauf- 
conduit  portant  six  personnes  au  lieu  de  trois  et  omettant  I’indication 
de  la  nationalite  allemande,  telle  qu’il  I’avait  lui-meme  prescrite,  ne 
peut  lui  etre  impute  que  comme  une  faute  non  intentionnelle ; 

Considerant  que  le  soldat  marocain  du  Consulat,  en  contribuant  a 
I’embarquement  des  deserteurs,  n’a  fait  qu’agir  d’apres  les  ordres  de  ses 
superieurs  et  que,  a raison  de  sa  situation  inferieure,  aucune  respon- 
sabilite  personnelle  ne  saurait  peser  sur  lui ; 

Considerant  que  le  Secretaire  du  Consulat  a intentionnellement 
cherche  a faire  embarquer  des  deserteurs  de  nationalite  non  allemande 
comme  jouissant  de  la  protection  du  Consulat; 

Qu’a  cette  fin,  il  a,  de  propos  delibere,  amene  le  Consul  a signer  le 
sauf-conduit  mentionne  ci-dessus ; et  que,  dans  la  meme  intention,  il 
a pris  des  mesures  tant  pour  conduire  au  port  que  pour  faire  em- 
barquer ces  deserteurs ; 

Qu’en  ag^ssant  ainsi,  il  est  sort!  des  limites  de  sa  competence  et  a 
commis  une  violation  grave  et  manifeste  de  ses  devoirs; 

Considerant  que  les  deserteurs  de  nationalite  allemande  se  sont 
trouves  au  port  sous  la  protection  de  fait  de  I’autorite  consulaire  alle- 
mande et  que  cette  protection  n’etait  pas  manifestement  ill^ale ; 

Considerant  que  cette  situation  de  fait  aurait  du,  dans  la  mesure 
du  possible,  etre  respectee  par  I’autorite  militaire  frangaise ; 

Considerant  que  les  deserteurs  de  nationalite  allemande  ont  ete 
arretes  par  cette  autorite  malgre  les  protestations  faites  au  nom  du 
Consulat ; 

Considerant  que  I’autorite  militaire  aurait  pu  et,  par  consequent,  du 
se  borner  a empecher  I’embarquement  et  la  fuite  de  ces  deserteurs  et, 
avant  de  proceder  a leur  arrestation  et  a leur  emprisonnement,  a offrir 
de  les  laisser  en  sequestre  au  Consulate  allemand,  jusqu’a  ce  que  la 
question  de  la  juridiction  competente  eut  ete  resolue ; 


THE  CASABLANCA  CASE 


483 


Que  cette  maniere  de  proceder  aurait  aussi  ete  de  nature  a main- 
tenir  le  prestige  de  I’autorite  consulaire,  conformement  aux  interets 
communs  de  tous  les  Europeens  vivant  au  Maroc ; 

Considerant  que,  meme  si  Ton  admet  la  legalite  de  I’arrestation,  les 
circonstances  ne  justifiaient,  de  la  part  de  militaires  frangais,  ni  la 
menace  faite  a I’aide  d’un  revolver,  ni  la  prolongation  des  coups  portes 
au  soldat  marocain  du  Consulat  meme  apres  que  sa  resistance  avait  ete 
brisee ; 

Considerant  que,  quant  aux  autres  outrages  ou  voies  de  fait  allegues 
de  part  et  d’autre,  I’enchainement  et  la  nature  exacte  des  evenements 
sont  impossibles  a etablir ; 

Considerant  que,  conformement  a ce  qui  a ete  dit  plus  haut,  les 
deserteurs  de  nationalite  allemande  auraient  du  etre  remis  au  Con- 
sulat pour  retablir  la  situation  de  fait  troublee  par  leur  arrestation ; 

Que  cette  restitution  aurait  aussi  ete  desirable  envue  de  maintenir 
le  prestige  consulaire ; 

Mais,  considerant  que,  dans  Tetat  actuel  des  choses,  ce  Tribunal 
etant  appele  a determiner  la  situation  definitive  des  deserteurs,  il  n’y 
a plus  lieu  d’ordonner  la  remise  provisoire  et  temporaire  qui  aurait  du 
s’efFectuer. 

Par  ces  Motifs, 

Le  Tribunal  arbitral  declare  et  prononce  ce  qui  suit: 

C’est  a tort  et  par  une  faute  grave  et  manifeste  que  le  Secretaire  du 
Consulat  imperial  allemand  a Casablanca  a tente  de  faire  embarquer, 
sur  un  vapeur  allemand,  des  deserteurs  de  la  Legion  etrangere  fran- 
gaise  qui  n’etaient  pas  de  nationalite  allemande. 

Le  Consul  allemand  et  les  autres  agents  du  Consulat  ne  sont  pas 
responsables  de  ce  chef,  toutefois,  en  signant  le  sauf-conduit  qui  lui  a 
ete  presente,  le  Consul  a commis  une  faute  non  intentionelle. 

Le  Consulat  allemand  n’avait  pas,  dans  les  conditions  de  I’espece,  le 
droit  d’accorder  sa  protection  aux  deserteurs  de  nationalite  allemande ; 
toutefois,  I’erreur  de  droit  commise  sur  ce  point  par  les  fonctionnaires 
du  Consulat  ne  saurait  leur  etre  imputee  comme  une  faute,  soit  inten- 
tionelle, soit  non  intentionnelle. 

C’est  a tort  que  les  autorites  militaires  frangaises  n’ont  pas,  dans  la 
mesure  du  possible,  respecte  la  protection  de  fait  exercee  sur  ces 
deserteurs  au  nom  du  Consulat  allemand. 

Meme  abstraction  faite  du  devoir  de  respecter  la  protection  con- 
sulaire, les  circonstances  ne  justifiaient,  de  la  part  de  militaires  frangais, 
ni  la  menace  faite  a I’aide  d’un  revolver,  ni  la  prolongation  des  coups 
donnes  au  soldat  marocain  du  Consulat. 

II  n’y  a pas  lieu  de  donner  suite  aux  autres  reclamations  contenues 
dans  les  conclusions  des  deux  Parties. 

Fait  a La  Haye,  dans  I’Hotel  de  la  Cour  permanente  d’Arbitrage, 
le  22  mai  1909. 

Le  President:  Hj.  L.  Hammarskjold 
Le  Secretaire  general:  Michiels  van  Verduynen 


484 


ORIGINAL  TEXTS 


Agreement  for  Arbitration,  November  24,  igo8^ 

Le  Gouvemement  de  la  Republique  Frangaise  et  le  Gouvemement 
Imperial  Allemand  s’etant  mis  d’accord,  le  10  novembre  1908,  pour 
soumettre  a Tarbitrage  I’ensemble  des  questions  soulevees  par  les 
evenements  qui  se  sont  produits  a Casablanca,  le  25  septembre  dernier, 
les  soussignes,  dument  autorises  a cet  effet,  sont  convenus  du  compro- 
mis  suivant : 

Art.  1.  Un  Tribunal  arbitral,  constitue  comme  il  est  dit  ci-apres,  est 
charge  de  resoudre  les  questions  de  fait  et  de  droit  que  soulevent  les 
evenements  qui  se  sont  produits  a Casablanca,  le  25  septembre  dernier, 
entre  les  agents  des  deux  pays. 

2.  Le  tribunal  arbitral  sera  compose  de  cinq  arbitres  pris  parmi  les 
membres  de  la  Cour  permanente  d’Arbitrage  de  La  Haye. 

Chaque  Gouvemement,  aussitot  que  possible  et  dans  un  delai  qui 
n’excedera  pas  quinze  jours  a partir  de  la  date  du  present  compromis, 
choisira  deux  arbitres  dont  un  seul  pourra  etre  son  national.  Les  quatre 
arbitres  ainsi  designes  choisiront  un  surarbitre  dans  la  quinzaine  du 
jour  ou  leur  designation  leur  aura  ete  notifiee. 

3.  Le  I®*"  fevrier  1909,  chaque  partie  remettra  au  Bureau  de  la  Cour 
permanente  dix-huit  exemplaires  de  son  Memoire  avec  les  copies  cer- 
tifiees  conformes  de  toutes  pieces  et  documents  qu’elle  compte  invo- 
quer  dans  la  cause.  Le  Bureau  en  assurera  sans  retard  la  transmission 
aux  arbitres  et  aux  parties,  savoir,  de  deux  exemplaires  pour  chaque 
arbitre,  de  trois  exemplaires  pour  chaque  partie.  Deux  exemplaires 
resteront  dans  les  archives  du  Bureau.  Le  1®^  avril  1909,  les  parties 
deposeront  dans  la  meme  forme  leurs  contre-Memoires  avec  les  pieces 
a I’appui  de  leurs  conclusions  finales. 

4.  Chaque  partie  devra  deposer  au  Bureau  International,  au  plus 
tard  le  15  avril  1909,  la  somme  de  3,000  florins  neerlandais,  a titre 
d’avance  pour  les  frais  du  litige. 

5.  Le  tribunal  se  reunira  a La  Haye  le  1®'’  mai  1909  et  procedera  im- 
mediatement  a I’examen  du  litige.  II  aura  la  faculte  de  se  transporter 
momentanement  ou  de  deleguer  un  ou  plusieurs  de  ses  membres  pour 
se  transporter  en  tel  lieu  qu’il  lui  semblerait  utile,  en  vue  de  proceder 
a des  mesures  d’information  dans  les  conditions  de  I’article  XX  de  la 
Convention  du  18  octobre  1907,  pour  le  reglement  pacifique  des  con- 
flits  internationaux. 

6.  Les  parties  peuvent  faire  usage  de  la  langue  frangaise  ou  de  la 
langue  allemande.  Les  membres  de  tribunal  peuvent  se  servir,  a leur 
choix,  de  la  langue  frangaise  ou  de  la  langue  allemande.  Les  decisions 
du  T ribunal  seront  redigees  dans  les  deux  langues. 

7.  Chaque  partie  sera  representee  par  un  agent  special  avec  mission 
de  servir  d’intermediaire  entre  elle  et  le  Tribunal.  Ces  agents  don- 
neront  les  eclaircissements  qui  leur  seront  demandes  par  le  Tribunal  et 
pourront  presenter  les  moyens  qu’ils  jugeraient  utiles  a la  defense  de 
leur  cause. 


^British  and  Foreign  State  Papers,  vol.  102,  p.  916. 


THE  CASABLANCA  CASE 


485 


8.  Pour  tout  ce  qui  n’est  pas  prevu  par  le  present  compromis,  les 
stipulations  de  la  Convention  precitee  du  18  octobre  1907,  dont  la 
ratification  n’a  pas  encoure  eu  lieu,  mais  qui  a ete  signee  egalement  par 
la  France  et  I’AUemagne,  seront  applicables  au  present  arbitrage. 

9.  Apres  que  le  Tribunal  arbitral  aura  resolu  les  questions  de  fait  et  de 
droit  qui  lui  sont  soumises,  il  reglera  en  consequence  la  situation 
des  individus  arretes  le  25  septembre  dernier  au  sujet  de  laquelle  il  y 
a contestation. 

Fait  en  double  a Berlin,  le  24  novembre  1908. 

(L.  S.)  Jules  Cambon 
(L.  S.)  Kiderlen 


Protocol  of  November  lo,  1908,  between  France  and  Germany  con- 
taining a Formula  of  Regrets  for  Events  which  occurred  at  Casa- 
blanca on  the  25th  September,  1908^ 

Les  deux  Gouvernements,  regrettant  les  evenements  qui  se  sont  pro- 
duits  a Casablanca  le  25  septembre  dernier  et  qui  ont  amene  des  agents 
subaltemes  a des  violences  et  a de  facheuses  voies  de  fait,  decident  de 
soumettre  I’ensemble  des  questions  soulevees  a ce  sujet  a I’arbitrage. 

D’un  commun  accord,  chacun  des  deux  Gouvernements  s’engage  a 
exprimer  ses  regrets  sur  les  actes  de  ces  agents,  suivant  le  jugement 
que  les  arbitres  auront  porte  sur  les  faits  et  sur  la  question  de  droit. 
Berlin,  le  10  novembre,  1908. 

Jules  Cambon 
Kiderlen 


Proces-verbal  of  Regrets  of  May  29,  1909- 

Le  Gouvernement  de  la  Republique  et  le  Gouvernement  Imperial 
etant  convenus,  le  10  novembre  dernier,  de  soumettre  I’ensemble  des 
questions  soulevees  par  les  evenements  qui  se  sont  produits  a Casa- 
blanca, le  25  septembre  precedent,  a un  tribunal  arbitral  convoque  a 
cet  effet,  et  les  deux  Gouvernements  s’etant  engages  a s’exprimer  mu- 
tuellement  des  regrets  sur  les  actes  de  leurs  agents,  suivant  le  jugement 
que  les  arbitres  auraient  porte  sur  les  faits  et  sur  la  question  de  droit ; 
et  le  Tribunal  arbitral  ayant,  a La  Haye,  le  22  mai,  1909,  declare  et 
prononce  ce  qui  suit: 

“C’est  a tort  et  par  une  faute  grave  et  manifeste  que  le  secretaire 
du  consulat  Imperial  allemand  a Casablanca  a tente  de  faire  embarquer 
sur  un  vapeur  allemand  des  deserteurs  de  la  Legion  etrangere  fran- 
qaise,  qui  n’etaient  pas  de  nationalite  allemande.  Le  consul  allemand 
et  les  autres  agents  du  consulat  ne  sont  pas  responsables  de  ce  chef ; 
toutefois,  en  signant  le  sauf-conduit  qui  lui  a ete  presente,  le  consul  a 

‘‘■British  and  Foreign  State  Papers,  vol.  102,  p.  916. 

^Ibid.,  p.  602. 


486 


ORIGINAL  TEXTS 


commis  une  faute  non  intentionnelle.  Le  consulat  allemand  n’avait  pas, 
dans  les  conditions  de  I’espece,  le  droit  d’accorder  sa  protection,  aux 
deserteurs  de  nationalite  allemande;  toutfois,  I’erreur  de  droit  com- 
mise  sur  ce  point  par  les  fonctionnaires  du  consulat  ne  saurait  leur 
etre  imputee  comme  une  faute,  soit  intentionnelle,  soit  non  intention- 
nelle. C’est  a tort  que  les  autorites  militaires  frangaises  n’ont  pas, 
dans  la  mesure  du  possible,  respecte  la  protection  de  fait  exercee  sur 
ces  deserteurs  au  nom  du  consulat  allemand.  Meme  abstraction  faite 
du  devoir  de  respecter  la  protection  consulaire,  les  circonstances  ne 
justifiaient,  de  la  part  de  militaires  frangais,  ni  la  menace  faite  a I’aide 
d’un  revolver,  ni  la  prolongation  des  coups  donnes  au  soldat  marocain 
du  consulat.  II  n’y  a pas  lieu  de  donner  suite  aux  autres  reclamations 
contenues  dans  les  reclamations  des  deux  parties.” 

Le  Gouvemement  de  la  Republique  frangaise  et  le  Gouvernement 
Imperial  d’Allemagne  declarent,  chacun  en  ce  qui  le  conceme,  ex- 
primer les  regrets  que  comportent  les  actes  releves  a la  charge  de  leurs 
agents  par  la  decision  arbitrale. 

Fait  a Berlin,  en  deux  exemplaires,  le  29  mai,  1909. 

Von  Schoen 
Baron  de  Berckheim 


THE  GRISBADARNA  CASE 


Award  of  the  Tribunal,  October  23,  ipop^ 

Considerant  que,  par  une  Convention  du  14  mars  1908,  la  Norvege 
et  la  Suede  se  sont  mises  d’accord  pour  soumettre  a la  decision  defini- 
tive d’un  Tribunal  arbitral,  compose  d’un  President  qui  ne  sera  ni 
sujet  d’aucune  des  Parties  contractantes  ni  domicilie  dans  I’un  des 
deux  pays,  et  de  deux  autres  Membres,  dont  Tun  sera  Norvegien  et 
Fautre  Suedois,  la  question  de  la  frontiere  maritime  entre  la  Norvege 
et  la  Suede,  en  tant  que  cette  frontiere  n’a  pas  ete  reglee  par  la 
Resolution  Royale  du  15  mars  1904; 

Considerant  que,  en  execution  de  cette  Convention,  les  deux 
Gouvernements  ont  designee  respectivement  comme  President  et 
Arbitres : 

Monsieur  J.  A.  Loeff,  Docteur  en  droit  et  en  sciences  politiques 
ancien  Ministre  de  la  Justice,  Membre  de  la  Seconde  Chambre  des 
Etats-Generaux  des  Pays-Bas ; 

Monsieur  F.  V.  N.  Beichmann,  President  de  la  Cour  d’appel  de 
Trondhjem,  et 

Monsieur  K.  Hj.  L.  de  Hammarskjold,  Docteur  en  droit,  ancien 
Ministre  de  la  Justice,  ancien  Ministre  des  Cultes  et  de  ITnstruction 
publique,  ancien  Envoye  extraordinaire  et  Ministre  plenipotentiaire 
a Copenhague,  ancien  President  de  la  Cour  d’appel  de  Jonkoping, 
ancien  Professeur  a la  Faculte  de  droit  d’Upsal,  Gouverneur  de  la 
Province  d’Upsal,  Membre  de  la  Cour  permanente  d’ Arbitrage; 

Considerant  que,  conformement  aux  dispositions  de  la  Convention, 
les  Memoires,  Contre-Memoires  et  Repliques  ont  ete  dument  echanges 
entre  les  Parties  et  communiques  aux  Arbitres  dans  les  delais  fixes 
par  le  President  du  Tribunal; 

Que  les  deux  Gouvernements  ont  respectivement  designe  comme 
Agents, 

le  Gouvemement  de  la  Norvege:  Monsieur  Kristen  Johanssen,  Avo- 
cat  a la  Cour  supreme  de  Norvege, 

et  le  Gouvemement  de  la  Suede:  Monsieur  C.  O.  Montan,  ancien 
Membre  de  la  Cour  d’appel  de  Svea,  Juge  au  Tribunal  mixte 
d’Alexandrie ; 

Considerant  qu’il  a ete  convenu,  par  I’article  II  de  la  Convention: 

1°.  que  le  Tribunal  arbitral  determinera  la  ligne  frontiere  dans  les 
eaux  a partir  du  point  indique  sous  XVIII  sur  la  carte  annexee  au 
projet  des  Commissaires  norvegiens  et  suedois  du  18  aout  1897,  dans 
la  mer  jusqu’a  la  limite  des  eaux  territoriales ; 


^Official  report,  in  fine. 


488 


ORIGINAL  TEXTS 


2°.  que  les  lignes  limitant  la  zone,  qui  pent  etre  I’objet  du  litige 
par  suite  des  conclusions  des  Parties  et  dans  la  quelle  la  ligne  frontiere 
sera  par  consequent  etablie,  ne  doivent  pas  etre  tracees  de  fagon  a 
comprendre  ni  des  iles,  ni  des  ilots,  ni  des  recifs,  qui  ne  sont  pas 
constamment  sous  I’eau ; 

Considerant  qu’il  a ete  egalement  convenu,  par  I’article  III  de  ladite 
Convention : 

1®.  que  le  Tribunal  arbitral  aura  a decider  si  la  ligne  frontiere  doit 
etre  consideree,  soit  entierement  soit  en  partie,  comme  fixee  par  le 
Traite  de  ddimitation  de  1661  avec  la  carte  y annexee  et  de  quelle 
maniere  la  ligne  ainsi  etablie  doit  etre  tracee; 

2°.  que,  pour  autant  que  la  ligne  frontiere  ne  sera  pas  consideree 
comme  fixee  par  ce  traite  et  cette  carte,  le  Tribunal  aura  a fixer  cette 
ligne  frontiere  entenant  compte  des  circonstances  de  fait  et  des  prin- 
cipes  du  droit  international; 

Considerant  que  les  Agents  des  Parties  ont  presente  au  Tribunal  les 
Conclusions  suivantes  {conclusions  traduites), 

I’Agent  du  Gouvemement  Norvegien : 

que  la  frontiere  entre  la  Norvege  et  la  Suede,  dans  la  zone  qui  forme 
I’objet  de  la  decision  arbitrale,  soit  determinee  en  conformite  avec  la 
ligne  indiquee  sur  la  carte,  annexee  sous  numero  35  au  Memoire  pre- 
sente au  nom  du  Gouvemement  Norvegien ; 

et  I’Agent  du  Gouvemement  Suedois : 

I.  en  ce  qui  conceme  la  question  preliminaire : 

Plaise  au  Tribunal  arbitral  de  declarer,  que  la  ligne  de  frontiere 
litigieuse,  quant  a I’espace  entre  le  point  XVIII  deja  fixe  sur  la  carte 
des  Commissaires  de  I’annee  1897  et  le  point  A sur  la  carte  du  Traite 
de  frontiere  de  I’annee  1661,  n’est  etablie  qu’incompletement  par  ledit 
traite  et  la  carte  du  traite,  en  tant  que  la  situation  exacte  de  ce  point-«ci 
n’en  ressort  pas  clairement,  et.  en  ce  qui  regarde  le  reste  de  I’espace, 
s’etendant  vers  I’ouest  a partir  du  meme  point  A jusqu’a  la  limite 
territoriale,  que  la  ligne  de  frontiere  n’a  pas  du  tout  ete  etablie  par  ces 
documents ; 

II.  en  ce  qui  concerne  la  question  principale: 

1.  Plaise  au  Tribunal  de  vouloir  bien,  en  se  laissant  diriger  par  le 
Traite  et  la  carte  de  I'annee  1661,  et  en  tenant  compte  des  circon- 
stances de  fait  et  des  principes  du  droit  des  gens,  determiner  la  ligne 
de  frontiere  maritime  litigieuse  entre  la  Suede  et  la  Norvege  a partir 
du  point  XVm,  deja  fixe,  de  telle  faqon,  que  d’abord  la  ligne  de 
frontiere  soit  tracee  en  ligne  droite  jusqu’a  un  point  qui  forme  le  point 
de  milieu  d’une  ligne  droite,  reliant  le  recif  le  plus  septentrional  des 
Roskaren,  faisant  partie  des  iles  de  Koster,  c’est-a-dire  celui  indique 
sur  la  table  5 du  Rapport  de  I’annee  1906  comme  entoure  des  chiffres 
de  profondeur  9,  10  et  10,  et  le  recif  qui  est  le  plus  meridional  des 
Svartskjar,  faisant  partie  des  iles  de  Tisler,  et  qui  est  muni  d’une 
balise,  point  indique  sur  la  meme  table  5 comme  point  XIX ; 

2.  Plaise  au  Tribunal  de  vouloir  bien  en  outre,  en  tenant  compte  des 
circonstances  de  fait  et  des  principes  du  droit  des  gens,  etablir  le  reste 
de  la  frontiere  litigieuse  de  telle  faqon,  que 


THE  GRISBADARNA  CASE 


489 


o.  a partir  du  point  fixe  selon  les  conclusions  sub  1 et  designe  comme 
point  XIX,  la  ligne  de  frontiere  soit  tracee  en  ligne  droite  jusqu’a  un 
point  situe  au  milieu  d’une  ligne  droite,  reliant  le  recif  le  plus  septen- 
trional des  recifs  indiques  par  le  nom  Stora  Drammen,  du  cote  suedois, 
et  le  rocher  Hejeknub  situe  au  sud-est  de  Tile  Heja,  du  cote  norvegien, 
point  indique  sur  ladite  table  5 comme  point  XX,  et 

b.  a partir  du  point  nomme  en  dernier  lieu,  la  frontiere  soit  tracee 
en  ligne  droite  vers  le  vrai  ouest  aussi  loin  dans  la  mer  que  les  terri- 
toires  maritimes  des  deux  Etats  sont  censes  s’etendre; 

Q)nsiderant  que  la  ligne  mentionnee  dans  les  conclusions  de  I’Agent 
Norvegien  est  tracee  comme  suit: 

du  point  XVIII  indique  sur  la  carte  des  Commissaires  de  1897  en 
ligne  droite  jusqu’a  un  point  XIX  situe  au  milieu  d’une  ligne  tiree 
entre  le  recif  le  plus  meridional  des  Svartskjar — celui  qui  est  muni 
d’une  balise — et  le  recif  le  plus  septentrional  des  Rdskaren, 

de  ce  point  XIX  en  ligne  droite  jusqu’a  un  point  XX  situe  au  milieu 
d’une  ligne  tiree  entre  le  recif  le  plus  meridional  des  Heiefluer  (sondre 
Heieflu)  et  le  recif  le  plus  septentrional  des  recifs  compris  sous  la 
denomination  de  Stora  Drammen, 

de  ce  point  XX  jusqu’a  un  point  XXa  en  suivant  la  perpendiculaire 
tiree  au  milieu  de  la  ligne  nommee  en  dernier  lieu, 

de  ce  point  XXo  jusqu’a  un  point  XX&  en  suivant  la  perpendiculaire 
tiree  au  milieu  d’une  ligne  reliant  ledit  recif  le  plus  meridional  des 
Heiefluer  au  recif  le  plus  meridional  des  recifs  compris  sous  la  de- 
nomination de  Stora  Drammen, 

de  ce  point  XX&  jusqu’a  un  point  XXc  en  suivant  la  perpendiculaire 
tiree  au  milieu  d’une  ligne  reliant  le  sondre  Heieflu  au  petit  recif  situe 
au  Nord  de  I’ilot  Klofningen  pres  de  Morholmen, 

de  ce  point  XXr  jusqu’a  un  point  XXc?  en  suivant  la  perpendiculaire 
tiree  au  milieu  d’une  ligne  reliant  le  midtre  Heieflu  au  dit  recif  au 
Nord  de  I’ilot  Klofningen, 

de  ce  point  XXc?  en  suivant  la  perpendiculaire  tiree  au  milieu  de  la 
ligne  reliant  le  midtre  Heieflu  a un  petit  recif  situe  a I’Ouest  du  dit 
Klofningen  jusqu’a  un  point  XXI  ou  se  croisent  les  cercles  tires  avec 
un  rayon  de  4 milles  marins  (a  60  au  degre)  autor  des  dits  recifs, 
Considerant,  qu’apres  que  le  Tribunal  eut  visite  la  zone  litigieuse, 
examine  les  documents  et  les  cartes  qui  lui  ont  ete  presentes,  et  entendu 
les  plaidoyers  et  les  repHques  ainsi  que  les  explications  qui  lui  ont  ete 
foumies  sur  sa  demande,  les  debats  ont  ete  declares  clos  dans  la  seance 
du  18  octobre  1909; 

Considerant,  en  ce  qui  conceme  I’interpretation  de  certaines  expres- 
sions dont  s’est  servi  la  Convention  et  sur  lesquelles  les  deux  Parties, 
au  cours  des  debats,  ont  emis  des  opinions  differentes, 

Que — en  premier  lieu — le  Tribunal  est  d’avis,  que  la  clause  d’apres 
laquelle  il  determinera  la  ligne  frontiere  dans  la  mer  jusqu’a  la  limite 
des  eaux  territoriales  n’a  d’autre  but  que  d’exclure  I’eventualite  d’une 
determination  incomplete,  qui,  dans  l’?venir,  pourrait  etre  cause  d’un 
nouveau  litige  de  frontiere ; 


490 


ORIGINAL  TEXTS 


que,  de  toute  evidence,  il  a ete  absolument  etranger  aux  intentions 
des  Parties  de  fixer  d’avance  le  point  final  de  la  frontiere,  de  sorte  que 
le  Tribunal  n’aurait  qu’a  determiner  la  direction  entre  deux  points 
donnes ; 

Que — en  second  lieu — la  clause,  d’apres  laquelle  les  lignes,  limitant 
la  zone,  qui  pent  etre  I’objet  du  litige  par  suite  des  conclusions  des 
Parties,  ne  doivent  pas  etre  trades  de  fagon  d comprendre,  ni  des  ties, 
ni  des  dots,  ni  des  recifs,  qui  ne  sont  pas  constamment  sous  Veau  ne 
saurait  etre  interpretee  de  maniere  a impliquer,  que  les  iles,  ilots  et 
recifs  susindiques  devraient  etre  pris  necessairement  comme  points  de 
depart  pour  la  determination  de  la  frontiere; 

Considerant  done  que,  sous  les  deux  rapports  susmentionnes,  le 
Tribunal  conserve  toute  sa  liberte  de  statuer  sur  la  frontiere  dans  les 
homes  des  pretentions  respectives ; 

Considerant,  que  d’apres  les  termes  de  la  Convention,  la  tache  du 
Tribunal  consiste  a determiner  la  ligne  frontiere  dans  les  eaux  a 
partir  du  point  indique  sous  XVIII,  sur  la  carte  annexee  au  projet 
des  Commissaires  Norvegiens  et  Suedois  du  18  aout  1897,  dans  ia 
mer,  jusqu’a  la  limite  des  eaux  territoriales ; 

Considerant,  quant  a la  question  “si  la  ligne  frontiere  doit  etre 
consideree,  soit  entierement  soit  en  partie,  comme  fixee  par  le  Traite 
de  delimitation  de  1661  avec  la  carte  y annexee,” 

que  la  reponse  a cette  question  doit  etre  negative,  du  moins  en  ce 
qui  conceme  la  ligne  frontiere  au  dela  du  point  A sur  la  carte  susin- 
diquee ; 

Considerant  que  la  situation  exacte,  que  le  p>oint  A occupe  sur  cette 
carte  ne  pent  etre  precisee  d’une  maniere  absolue,  mais  que,  en  tout 
cas,  il  correspond  a un  point  situe  entre  le  point  XIX  et  le  point  XX, 
comme  ces  deux  points  seront  fixes  ci-apres; 

Considerant  que  les  Parties  en  litige  sont  d’accord  en  ce  qui  conceme 
la  ligne  frontiere  du  p>oint  indique  sous  XVIII  sur  la  carte  du  18 
aout  1897  jusqu’au  point  indique  sous  XIX  dans  les  conclusions 
suedoises ; 

Considerant  que,  en  ce  qui  conceme  la  ligne  frontiere  du  dit  point 
XIX  jusqu’a  un  point  indique  sous  XX  sur  des  cartes  annexees  aux 
memoires,  les  Parties  sont  egalement  d’accord,  sauf  la  seule  difference 
dependant  de  la  question  de  savoir  si,  pour  determiner  le  point  XX,  il 
faut  prendre  les  Heiefluer  ou  bien  le  Heieknub  comme  point  de  depart 
du  cote  norvegien ; 

Considerant,  a ce  sujet, 

que  les  Parties  ont  adopte,  en  pratique  du  moins,  le  principe  du  par- 
tage  par  la  ligne  mediane,  tiree  entre  les  iles,  ilots  et  recifs,  situes  des 
deux  cotes  et  n’etant  pas  constamment  submerges,  comme  ayant  ete, 
a leur  avis,  le  principe  qui  avait  ete  applique  en  dega  du  point  A,  par  le 
Traite  de  1661 ; 

qu’une  adoption  de  principe  inspiree  par  de  pareils  motifs — abstrac- 
tion faite  de  la  question,  si  le  principe  invoque  a ete  reellement  ap- 
plique par  ledit  traite — doit  avoir  pour  consequence  logique  que,  en 


THE  GRISBADARNA  CASE 


491 


I’appliquant  de  nos  jours,  on  tienne  compte  en  meme  temps  des  cir- 
constances  de  fait  ayant  existe  a I’epoque  du  traite; 

Considerant  que  les  Heiefluer  sont  des  recifs  dont,  a un  degre  suffi- 
sant  de  certitude,  on  peut  pretendre  que,  au  temps  du  traite  de  delimi- 
tation de  1661,  ils  n’emergeaient  pas  de  I’eau, 

que,  par  consequent,  a cette  epoque  la  ils  n’auraient  pu  servir  comme 
IK)int  de  depart  pour  une  delimitation  de  frontiere; 

Considerant  done  que,  au  point  de  vue  mentionne  plus  haut,  le 
Heieknub  doit  etre  prefere  aux  Heiefluer; 

Considerant  que  le  point  XX  etant  fixe,  il  reste  a determiner  la 
ligne  frontiere  a partir  de  ce  point  XX  jusqu’a  la  limite  des  eaux 
territoriales ; 

Considerant  que  le  point  XX  est  situe,  sans  aucun  doute,  au  dela 
du  point  A,  indique  sur  la  carte  annexee  au  Traite  de  delimitation  de 
1661; 

Considerant  que  la  Norvege  a soutenu  la  these,  qui  du  reste  n’a  pas 
ete  rejetee  par  la  Suede,  que  par  le  seul  fait  de  la  paix  de  Roskilde 
en  1658  le  territoire  maritime  dont  il  s’agit  a ete  partage  automatique- 
ment  entre  Elle  et  la  Suede; 

Considerant  que  le  Tribunal  se  rallie  completement  a cette  opinion; 

Considerant  que  cette  opinion  est  conforme  aux  principes  fonda- 
mentaux  du  droit  des  gens,  tant  ancien  que  modeme,  d’apres  lesquels 
le  territoire  maritime  est  une  dependance  necessaire  d’un  territoire 
terrestre,  ce  dont  il  suit,  qu’au  moment  que,  en  1658,  le  territoire 
terrestre  nomme  le  Bohuslan  fut  cede  a la  Suede,  le  rayon  de  terri- 
toire maritime  formant  la  dependance  inseparable  de  ce  territoire 
terrestre  dut  faire  automatiquement  partie  de  cette  cession; 

Considerant  que  de  ce  raisonnement  il  resulte,  que,  pour  constater 
quelle  peut  avoir  ete  la  ligne  automatique  de  division  de  1658,  il  faut 
avoir  recours  aux  principes  de  droit  en  vigueur  a cette  epoque; 

Considerant  que  la  Norvege  pretend,  que,  en  dega  de  la  ligne  Koster- 
Tisler  le  principe  des  documents  de  frontiere  de  1661  ayant  ete  que 
la  frontiere  devrait  suivre  la  ligne  mediane  entre  les  iles,  ilots  et  recifs 
des  deux  cotes,  le  meme  principe  doit  etre  applique  quant  a la  frontiere 
au  dela  de  cette  ligne; 

Considerant  qu’il  n’est  pas  etabli,  que  la  ligne  de  frontiere  deter- 
minee  par  le  traite  et  tracee  sur  la  carte  de  delimitation  ait  ete  basee 
sur  ce  principe ; 

qu’il  y a des  details  et  des  particularites  dans  la  ligne  suivie,  qui 
font  meme  surgir  des  doutes  serieux  a ce  sujet; 

que,  meme  si  Ton  admettait  pour  la  ligne  de  frontiere  determinee 
par  le  traite,  I’existence  de  ce  principe,  il  ne  s’ensuivrait  pas  que  le 
meme  principe  aurait  du  etre  applique  pour  la  determination  de  la 
frontiere  dans  le  territoire  exterieur; 

Considerant,  a ce  sujet, 

que  le  Traite  de  delimitation  de  1661  et  la  carte  de  ce  traite  font 
commencer  la  ligne  de  frontiere  entre  les  iles  de  Koster  et  de  Tisler; 

que,  en  determinant  la  ligne  de  frontiere,  on  est  alle  dans  la  direc- 
tion de  la  mer  vers  la  cote  et  non  de  la  cote  vers  la  mer; 


492 


ORIGINAL  TEXTS 


que  Ton  ne  saurait  done  meme  parler  d’une  continuation  possible 
de  cette  ligne  de  frontiere  dans  la  direction  vers  le  large; 

que,  par  consequent,  le  trait-d’union  manque  pour  pouvoir  presumer, 
sans  preuve  decisive,  I’application  simultanee  du  meme  principe  aux 
territoires  situes  en  dega  et  a ceux  situes  au  dela  de  la  ligne  Koster- 
Tisler ; 

Considerant  en  outre, 

que  ni  le  traite  de  ddimitation,  ni  la  carte  y appartenant  ne  font 
mention  d’iles,  ilots  ou  recifs  situes  au  dela  de  la  ligne  Koster-Tisler ; 

que  done,  pour  rester  dans  les  intentions  probable  de  ces  documents, 
il  faut  faire  abstraction  de  tels  iles,  ilots  et  recifs; 

Considerant  en  plus, 

que  le  territoire  maritime,  correspondant  a une  zone  d’une  certaine 
largeur,  presente  de  nombreuses  particularites  qui  le  distinguent  du 
territoire  terrestre  et  des  espaces  maritimes  plus  ou  moins  complete- 
ment  environnes  de  ces  territoires ; 

Considerant  au  meme  sujet  encore, 

que  les  regies  sur  le  territoire  maritime  ne  sauraient  servir  de  direc- 
tives pour  la  determination  de  la  frontiere  entre  deux  pays  limitrophes, 
d’autant  moins  qu’il  s’agit  dans  I’espece  de  la  determination  d’une 
frontiere,  qui  doit  s’etre  automatiquement  tracee  en  1658,  tandis  que 
les  regies  invoquees  datent  de  siecles  posterieurs ; 

qu’il  en  est  de  meme  pour  les  regies  du  droit  interne  Norvegien, 
concemant  la  delimitation  soit  entre  les  proprietes  privees,  soit  entre 
les  unites  administratives ; 

Considerant  que,  par  tous  ces  motifs,  on  ne  saurait  adopter  la 
methode  d’apres  laquelle  la  Norvege  a propose  de  determiner  la  fron- 
tiere du  point  XX  jusqu’a  la  limite  territoriale ; 

Considerant  que  le  principe  d’une  ligne  mediane  a tirer  au  milieu 
des  terres  habitees  ne  trouve  pas  d’appui  suffisant  dans  le  droit  des 
gens  en  vigueur  au  XVII®  siecle ; 

Considerant  qu’il  en  est  de  meme  pour  le  principe  du  thalweg  ou  du 
chenal  le  plus  important,  principe  dont  I’application  a I’espece  ne  se 
trouve  pas  non  plus  etablie  par  les  documents  invoques  a cet  effet ; 

Considerant  que  Ton  est  bien  plus  en  concordance  avec  les  idees  du 
XVII®  siecle  et  avec  les  notions  de  droit  en  vig^ueur  a cette  epoque  en 
admettant  que  la  division  automatique  du  territoire  en  question  a du 
s’effectuer  d’apres  la  direction  gaierale  du  territoire  terrestre  duquel 
le  territoire  maritime  formait  une  appartenance  et,  en  appliquant  par 
consequent,  pour  arriver  a une  determination  legitime  et  justifiee  de 
la  frontiere,  de  nos  jours  ce  meme  principe; 

Considerant  que,  par  suite,  la  ligne  automatique  de  partage  de  1658 
doit  etre  determinee,  ou — ce  qui  en  d’autres  termes  est  exactement  la 
meme  chose — le  partage  d’aujourd’hui  doit  etre  fait  en  traqant  une 
ligne  perpendiculairement  a la  direction  generale  de  la  cote,  tout  en 
tenant  compte  de  la  necessite  d’indiquer  la  frontiere  d’une  maniere 
claire  et  indubitable  et  d’en  faciliter,  autant  que  possible,  I’observ'ation 
de  la  part  des  interesses ; 


THE  GRISBADARNA  CASE 


493 


Considerant  que,  pour  savoir  quelle  est  cette  direction,  il  faut,  d’une 
maniere  egale,  tenir  compte  de  la  direction  de  la  cote  situee  des  deux 
cotes  de  la  frontiere; 

Considerant  que  la  direction  generate  de  la  cote,  d’apres  I’expertise 
consciencieuse  du  Tribunal,  decline  du  vrai  Nord  d’environ  20  degres 
vers  rOuest; 

que,  par  consequent,  la  ligne  perpendiculaire  doit  se  diriger  vers 
rOuest,  a environ  20  degres  au  Sud; 

Considerant  que  les  Parties  sont  d’accord  a reconnaitre  le  grand  in- 
convenient qu’il  y aurait  a tracer  la  ligne  frontiere  a travers  des  bancs 
importants ; 

qu’une  ligne  de  frontiere,  tracee  du  point  XX  dans  la  direction  de 
rOuest,  a 19  degres  au  Sud,  eviterait  completement  cet  inconvenient 
puisqu’elle  passerait  juste  au  Nord  des  Grisbadarna  et  au  Sud  des 
Skjottegrunde  et  qu’elle  no  couperait  non  plus  aucun  autre  banc 
important ; 

que,  par  consequent,  la  ligne  frontiere  doit  etre  tracee  du  point  XX 
dans  la  direction  de  I’Ouest,  a 19  degres  au  Sud,  de  maniere  qu’elle 
passe  au  milieu  des  bancs  Grisbadarna  d’un  cote  et  des  bancs 
Skjottegrunde  de  I’autre; 

Considerant  que,  bien  que  les  Parties  n’aient  pas  indique  de  marques 
d’alignement  pour  une  ligne  de  frontiere  ainsi  tracee,  il  y a lieu  de 
croire  que  ce  ne  soit  pas  impossible  d’en  trouver ; 

Considerant  d’autre  part  que,  le  cas  echeant,  on  pourrait  avoir 
recours  a d’autres  methodes  connues  de  marquer  la  frontiere; 

Considerant  qu’une  demarcation  qui  attribue  les  Grisbadarna  a la 
Suede  se  trouve  appuyee  par  I’ensemble  de  plusieurs  circonstances  de 
fait,  qui  ont  ete  relevees  aux  cours  des  debats,  et  dont  les  principals 
sont  les  suivantes : 

a.  la  circonstance  que  la  peche  aux  homards  aux  basfonds  de  Gris- 
badama  a ete  exercee  depuis  un  temps  bien  plus  recule,  dans  une  bien 
plus  large  mesure  et  avec  un  bien  plus  grand  nombre  de  pecheurs  par 
les  ressortissants  de  la  Suede  que  par  ceux  de  la  Norvege; 

b.  la  circonstance  que  la  Suede  a affectue  dans  les  parages  de  Gris- 
badarna, surtout  dans  les  derniers  temps,  des  actes  multiples  emanes 
de  sa  conviction  que  ces  parages  etaient  suedois,  comme,  par  exemple, 
le  balisage,  le  mesurage  de  la  mer  et  I’installation  d’un  bateau-phare, 
lesquels  actes  en  trainaient  des  frais  considerables  et  par  lesquels  elle 
ne  croyait  pas  seulement  exercer  un  droit  mais  bien  plus  enco.re 
accomplir  un  devoir;  tandis  que  la  Norvege,  de  son  propre  aveu,  sous 
ces  divers  rapports  s’est  soucie  bien  moins  ou  presque  pas  du  tout 
de  ces  parages ; 

Considerant,  en  ce  qui  concerne  la  circonstance  de  fait  mentionnee 
sous  a, 

que,  dans  le  droit  des  gens,  c’est  un  principe  bien  etabli,  qu’il  faut 
s’abstenir  autant  que  possible  de  modifier  I’etat  des  choses  existant  de 
fait  et  depuis  longtemps ; 

que  ce  principe  trouve  une  application  toute  particuliere  lorsqu’il 


494 


ORIGINAL  TEXTS 


s’agit  d’interets  prives,  qui,  une  fois  mis  en  souffrance,  ne  sauraient 
etre  sauvegardes  d’lme  maniere  efficace  meme  par  des  sacrifices  quel- 
conques  de  I’Etat,  auquel  appartiennent  les  interesses; 

que  c’est  la  peche  aux  homards,  qui,  aux  bancs  de  Grisbadama 
est  de  beaucoup  la  plus  importante  et  que  c’est  surtout  cette  peche 
qui  donne  aux  bancs  leur  valeur,  comme  place  de  peche; 

que,  sans  conteste,  les  Suedois  ont  ete  les  premiers  a pecher  aux 
homards  a I’aide  des  engins  et  des  embarcations  necessaires  pour 
I’exercice  de  la  peche  aussi  loin  dans  la  mer  que  sont  situes  les  bancs 
en  question; 

que  la  peche  en  general  a plus  d’importance  pour  les  habitantes  de 
Koster  que  pour  ceux  de  Hvaler  et  que,  au  moins  jusqu’a  un  temps 
assez  peu  recule,  ceux-ci  se  sont  adonnes  plutot  a la  navigation  qu'a 
la  peche ; 

que  de  ces  diverses  circonstances  il  ressort  deja  avec  une  probabilite 
equivalente  a un  haut  degre  de  certitude,  que  les  Suedois  ont,  beaucoup 
plus  tot  et  d’une  maniere  beaucoup  plus  efficace  que  les  Norvegiens, 
exploite  les  bancs  en  question ; 

que  les  depositions  et  les  declarations  des  temoins  sont  en  general 
en  pleine  concordance  avec  cette  concl  jsion ; 

que,  egalement,  la  Convention  d’arbitrage  est  en  pleine  concordance 
avec  la  meme  conclusion ; 

que,  d’apres  cette  convention,  il  existe  une  certaine  connexite  entre 
la  jouissance  de  la  peche  des  Grisbadama  et  I’entretien  du  bateau- 
phare  et  que,  la  Suede  etant  obligee  d’entretenir  le  bateau-phare  aussi 
longtemps  que  continuera  I’etat  actuel,  cela  demontre  que,  d’apres  les 
raisons  de  cette  clause,  la  jouissance  principale  en  revient  aujourd’hui 
a la  Suede ; 

Considerant,  en  ce  qui  concerne  les  circonstances  de  fait,  mentionnes 
sous  b, 

Quant  au  balisage  et  au  stationnement  d’un  bateau-phare, 

que  le  stationnement  d’un  bateau-phare,  necessaire  a la  securite  de 
la  navigation  dans  les  parages  de  Grisbadama,  a ete  eflfectue  par  la 
Suede  sans  rencontrer  de  protestation  et  sur  I’initiative  meme  de  la 
Norvege  et  que,  egalement,  I’etablissement  d’un  assez  grand  nombre 
de  balises  y a ete  opere  sans  soulever  des  protestations ; 

que  ce  bateau-phare  et  ces  balises  sont  maintenus  toujours  par  les 
soins  et  aux  frais  de  la  Suede; 

que  la  Norvege  n’a  pris  de  mesures  en  quelque  maniere  correspon- 
dantes  qu’en  y plaqant  a une  epoque  posterieure  au  balisage  et  pour  un 
court  laps  de  temps  une  bouee  sonore,  dont  les  frais  d’etablissement  et 
d’entretien  ne  pourraient  meme  etre  compares  a ceux  du  balisage  et  du 
bateau-phare ; 

que  de  ce  qui  precede  ressort  que  la  Suede  n’a  pas  doute  de  son  droit 
aux  Grisbadama  et  qu’Elle  n’a  pas  hesite  d’encourir  les  frais  incom- 
bant  au  proprietaire  et  possesseur  de  ces  bancs  jusque  meme  a un 
montant  tres-considerable ; 

Quant  aux  mesurages  de  mer, 


THE  GRISBADARNA  CASE 


495 


que  la  Suede  a precede  la  premiere  et  une  trentaine  d’annees  avant 
le  commencement  de  toute  contestation,  a des  mesurages  exacts,  la- 
borieux  et  couteux  des  parages  de  Grisbadarna,  tandis  que  les  mesu- 
rages faits  quelques  annees  plus  tard  par  les  soins  de  la  Norvege  n’ont 
meme  pas  atteint  les  limites  des  mesurages  Suedois ; 

Considerant  done  qu’il  n’est  pas  douteux  du  tout  que  I’attribution 
des  bancs  de  Grisbadarna  a la  Suede  est  en  parfaite  concordance  avec 
les  circonstances  les  plus  importantes  de  fait ; 

Considerant,  qu’une  demarcation  qui  attribues  les  Skjottegrunde — 
la  partie  la  moins  importante  du  territoire  litigieux — a la  Norvege  se 
trouve  suffisamment  appuyee,  de  son  cote,  par  la  circonstance  de  fait 
serieuse  que,  quoiqu’on  doive  conclure  des  divers  documents  et  te- 
moignages,  que  les  pecheurs,  Suedois — comme  il  a ete  dit  plus  haut — 
ont  exerce  la  peche  dans  les  parages  en  litige  depuis  un  temps  plus  recule, 
dans  une  plus  large  mesure  et  en  plus  grand  nombre,  il  est  certain 
d’autre  part  que  les  pecheurs  Norvegiens  n’y  ont  ete  jamais  exclus  de 
la  peche; 

que,  en  outre,  il  est  avere  qu’aux  Skjottegrunde,  les  pecheurs  Nor- 
vegiens ont  presque  de  tout  temps,  et  d’une  maniere  relativement  bien 
plus  efficace  qu’aux  Grisbadarna,  pris  part  a la  peche  aux  homards. 

Par  ces  Motifs 

Le  Tribunal  decide  et  prononce: 

Que  la  frontiere  maritime  entre  la  Norvege  et  la  Suede,  entant 
qu’elle  n’a  pas  ete  reglee  par  la  Resolution  royale  du  15  mars  1904  est 
determinee  comme  suit : 

du  point  XVIII,  situe  comme  il  est  indique  sur  la  carte  annexee  an 
projet  des  commissaires  Norvegiens  et  Suedois  du  18  aout  1897,  une 
ligne  droite  est  tracee  au  point  XIX,  formant  le  point  de  milieu  d’une 
ligne  droite  tiree  du  recif  le  plus  septentrional  des  Roskaren  au  recif 
le  plus  meridional  des  Svartskjar,  celui  qui  est  muni  d’une  balise, 
du  point  XIX  ainsi  fixe  une  ligne  droite  est  tracee  au  point  XX, 
formant  le  point  de  milieu  d’une  ligne  droite  tiree  du  recif  le  plus 
septentrional  du  groupe  des  recifs  Stora  Drammen  au  recif  le 
Hejeknub  situe  au  Sud-est  de  I’ile  Heja, 

du  point  XX  une  ligne  droite  est  tracee  dans  une  direction  Quest, 
19  degres  au  Sud,  laquelle  ligne  passe  au  milieu  entre  les  Grisbadarna 
et  le  Skjottegrund  Sud  et  se  prolonge  dans  la  meme  direction  jusqu’a 
ce  qu’elle  aura  atteint  la  mer  libre. 

Fait  a La  Haye,  le  23  octobre  1909  dans  I’Hotel  de  la  Cour  perma- 
nente  d’arbitrage. 

Le  President:  J.  A.  Loeff 
Le  Secretaire  general:  Michiels  van  Verduynen 
Le  Secretaire:  Roell 


496 


ORIGINAL  TEXTS 


Agreement  for  Arbitration,  March  14,  jgo8^ 


Hans  Majestat  Konungen  af 
Sverige  och  bans  Majestat  Kon- 
ungen af  Norge,  som  funnit,  att 
fragan  om  sjogransen  mellan 
Sverige  och  Norge,  i den  man 
denna  grans  icke  redan  blifvit 
bestamd  genom  kungl.  beslutet 
den  15  mars  1904,  bor  hanskjutas 
till  skiljedom,  hafva  for  detta 
andamal  till  Sina  fullmaktige 
utsett : 

Hans  Majestat  Konungen  af 
Sverige : 

Sin  minister  for  utrikes  aren- 
dena  Eric  Birger  Trolle; 

Hans  Majestat  Konungen  af 
Norge : 

Sin  envoye  extraordinaire  och 
ministre  plenipotentiare  Paul 
Benjamin  Vogt, 

hvilka,  efter  att  hafva  med- 
delat  hvarandra  sina  fullmakter, 
som  befunnits  i god  och  behorig 
form,  dfverenskommit  om  fol- 
jande  bestammelser : 

Art.  1 

Partema  forbinda  sig  att  i 
nedan  angifna  omfang  dfver- 
lamna  fragan  om  sjogransen 
mellan  Sverige  och  Norge  till 
slutligt  afgorande  genom  en 
skiljedomstol,  bestaende  af  en 
ordfdrande,  som  icke  ar  nagon- 
dera  partens  undersate  eller  bosatt 
i nagotdera  landet,  samt  af  tva 
andra  ledamdter,  en  svensk  och 
en  norsk. 

Ordfdranden  utses  af  Hennes 
Majestat  Drottningen  af  Neder- 
landerna,  de  ofriga  ledamoterna 
en  af  hvardera  parten.  Parterna 
forbehalla  sig  dock  att,  i handelse 
de  darom  kunna  enas,  genom  en 
sarskild  dfverenskommelse  utse 


Hans  Majestaet  Kongen  av 
Sverige  og  Hans  Majestaet  Kon- 
gen av  Norge,  som  har  fundet, 
at  spdrsmaalet  om  sjograensen 
mellem  Sverige  och  Norge  i den 
utstraekning,  hvori  den  ikke  er 
blevet  bestemt  ved  resolution  av 
15  mars  1904,  bor  henskytes  til 
avgjorelse  ved  voldgift,  har  i 
dette  oiemed  opnaevnt  som  sine 
befuldmaegtigede ; 

Hans  Majestaet  Kongen  av 
Sverige : 

Sin  minister  for  de  utenrikske 
anliggender,  Eric  Birger  Trolle; 

Hans  Majestaet  Kongen  av 
Norge : 

Sin  overordentlige  utsending  og 
befuldmaegtigede  minister  i 
Stockholm  Paul  Benjamin  Vogt, 

hvilke,  efter  at  ha  meddelt  hi- 
nanden  sine  fuldmagter,  som 
fandtes  i god  og  behorig  form,  er 
kommet  overens  om  folgende 
artikler : 

Art.  1 

Parteme  forpligter  sig  til  i den 
nedenfor  angivne  utstraekning  at 
undergi  sporsmaalet  om  sjograen- 
sen mellen  Sverige  og  Norge 
endelig  avgjorelse  av  en  vold- 
giftsret,  bestaaende  av  en  praesi- 
det,  som  ikke  er  nogen  av  p>ar- 
ternes  undersaat  eller  bosat  i 
noget  av  de  to  lande,  samt  av  to 
andre  medlemmer,  en  svensk  og 
en  norsk. 

Praesidenten  vaelges  av  Hen- 
des  Majestaet  Dronningen  av 
Nederlandene,  de  dvrige  medlem- 
mer en  av  hver  part.  Parterne 
forbeholder  sig  dog  i tilfaelde  av, 
at  de  derom  kan  enes,  ved  saers- 
kilt  overenskomst  at  utse  enten 


^Martens,  Nouveau  Recueil  Giniral  de  Traites,  3d  series,  vol.  2,  p.  761. 


THE  GRISBADARNA  CASE 


497 


vare  sig  blott  ordforanden  eller 
skiljedomstolens  samtliga  leda- 
moter.  Framstallning  till  Hen- 
nes  Majestat  Drottningen  af 
Nederlanderna  eller  skiljedomare, 
som  ma  blifva  utsedd  genom 
dfverenskommelse,  skall  goras  af 
bada  parterna  gemensamt. 

Art.  2 

Skiljedomstolen  skall,  efter 
profiling  af  partemas  yrkanden 
samt  till  stod  darfor  anforda  skal 
och  bevis,  faststalla  granslinjen  i 
vattnet  fran  punkt  XVIII  a den 
vid  de  svenska  och  norska  kom- 
missariernas  forslag  af  18  augusti 
1897  fogade  karta  ut  i hafvet 
intill  territorialgransen.  Det  ar 
dfverenskommet,  att  ytterlinjema 
for  det  omrade,  som  genom  par- 
temas yrkande  kan  goras  till 
foremal  for  tvist  och  inom  hvilket 
gransen  alltsa  skall  faststallas, 
icke  ma  dragas  sa  att  daraf  om- 
fattas  5ar,  holmar  och  skar,  som 
ej  standigt  ofverskoljas  af  vatt- 
net. 

Art.  3 

Skiljedomstolen  ager  att  afgora, 
huruvida  granslinjen  bor  anses 
vara,  belt  eller  till  viss  strackning, 
bestamd  genom  granstraktaten  af 
1661  med  dartill  horande  karta 
och  hum  den  salunda  bestamda 
granslinjen  bor  uppdragas,  samt 
att,  for  sa  vidt  granslinjen  anses 
ej  vara  genom  ifragavarande 
traktat  och  karta  bestamd,  fast- 
stalla densamma  med  afseende  pa 
faktiska  forhallanden  och  fol- 
krattsliga  principer. 

Art.  4 

Intill  utgangen  af  tredje  kalen- 
deraret  efter  det,  hvamnder 
skiljedomstolens  slutliga  beslut 


alene  praesidenten  eller  vold- 
giftsrettens  samtlige  medlemmer. 
Henvendelse  till  Hendes  Majaes- 
taet  Dronningen  av  Nederlandene 
eller  til  voldgiftsdommer,  som 
maate  bli  utseet  gjennem  overens- 
komst,  skal  rettes  av  begge  parter 
i faellesskap 

Art.  2 

Voldgiftsretten  skal  efter  ad 
ha  provet  parternes  paastande  og 
de  til  stotte  derfor  anforte  grunde 
og  bevisligheter  fastsaette  graen- 
sellinjen  i vandet  fra  punkt 
XVIII  paa  det  kart,  som  er  bilagt 
de  svenske  og  norske  kommis- 
saerers  forslag  av  18  august  1897, 
ut  i havet  indtil  territorialgraen- 
sen.  Det  er  overenskommet,  at 
yderlinjerne  for  det  omraade, 
som  ved  parternes  paastande  kan 
gjdres  til  gjenstand  for  tvist,  og 
indenfor  hvilket  graensen  altsaa 
skal  fastsaettes,  ikke  maa  drages 
saaledes,  at  deri  indbefattes  oer, 
holmer  og  skjaer,  som  ikke  stadig 
overskylles  av  vandet. 

Art.  3 

Voldgiftsretten  har  at  avgjdre, 
hvorvidt  graenselinjen  bor  ansees 
for  at  vaere  belt  eller  paa  en  vis 
straekning  fastslaaet  ved  graen- 
setraktaten  av  1661  med  dertil 
horende  kart,  og  hvorledes  den 
saaledes  bestemte  graenselinje 
bor  optraekkes,  samt  forsaavidt 
graenselinjen  ikke  ansees  at  vaere 
bestemt  ved  omhandlede  traktat 
og  kart,  at  fastsaette  samme  under 
hensyn  til  faktiske  forhold  og 
folkeretslige  principer. 

Art.  4 

Indtil  utgangen  av  det  tredje 
kalenderaar  efter  det,  i hvilket 
voldgiftsrettens  endelige  beslut- 


498 


ORIGINAL  TEXTS 


meddelas,  mi  oberoende  af  den 
granslinje,  som  genom  berorda 
beslut  faststalles,  fiske  inom  det 
omride,  som  enligt  art.  2 kan 
vara  foremal  for  tvist,  idkas  af 
hvartdera  rikets  undersatar  i 
samma  omfattning  som  under 
femarsperioden  1901-05.  Vid 
beddmande  af  fiskets  omfattning 
tages  hansyn  till  de  fiskandes 
antal,  fiskets  art  och  fangstsattet. 

Art.  5 

Det  ar  dfverenskommet,  att  det 
rike,  pa  hvars  sida  om  den 
blifvande  granslinjen  fiskegrundet 
Grisebadame  ar  belaget,  icke 
gentemot  det  andra  riket  ager 
nagot  ansprak  pa  deltagande  i 
kostnaden  for  fyrskepp  eller  lik- 
nande  anordningar  pa  eller  i 
narheten  af  namnda  grund. 

Sverige  fdrbinder  sig  att  bibe- 
halla  det  nuvarande,  utanfdr 
territorialgransen  utlagda  fyrs- 
keppet  intill  utgangen  af  den  i 
art.  4 namnda  tid. 

Art.  6 

Skiljedomstolens  ordfdrande 
utsatter  tid  och  ort  for  dom- 
stolens  fdrsta  sammantrade  och 
kallar  till  detta  sammantrade  de 
ofriga  ledamdterna. 

Tid  och  ort  for  ytterligare  sam- 
mantraden  bestammas  af  skilje- 
domstolen. 

Art.  7 

Det  ofFiciella  sprak,  som  af 
skiljedomstolen  anvandes,  skall 
vara  engelska,  franska  eller  tyska, 
enligt  bestammande,  som  traffas 
af  ordfdranden  efter  samrad 
med  de  ofriga  ledamdterna. 

Parterna  mi  dessutom  i inlagor, 


ning  meddeles,  skal  uten  hensyn 
til  den  graenselinje,  som  gjennem 
naevnte  beslutning  fastaettes, 
fiske  kunne  drives  av  hvert  rikes 
undersaatter  indenfor  det  om- 
raade,  som  efter  art.  II  kan  vaere 
gjenstand  for  tvist,  i samme 
utstraekning  som  under  femaars- 
perioden  1^1-1905.  Ved  beddm- 
melsen  av  fiskets  utstraekning 
tages  hensyn  til  de  fiskendes  antal, 
fiskets  art  og  fangstmaaten. 

Art.  5 

Det  er  overenskommet,  at  det 
rike,  paa  hvis  side  av  den  blivende 
graenselinje  fiskegrunderne 
“Grisebaaeme”  er  beliggende, 
ikke  overfor  det  andet  rike  har 
krav  paa  deltagelse  i omkost- 
ninger  til  fyrskib  eller  lignende 
foranstaltninger  paa  eller  i naer- 
heten  av  naevnte  grunder. 

Sverige  forpligter  sig  til  at  bibe- 
holde  det  nuvaerende  utenfor 
territorialgraensen  anlagte  fyrskib 
indtil  utgangen  av  den  i art.  IV 
naevnte  overgangstid. 

Art.  6 

Voldgiftsrettens  praesident  be- 
stemmer  tid  og  sted  for  rettens 
fdrste  sammentraede  og  varsler 
de  dvrige  medlemmer  om  dette 
sammentraede. 

Tid  og  sted  for  videre  sammen- 
traede bestemmes  av  voldgiftsret- 
ten. 

Art.  7 

Det  officielle  sprog,  som  af 
voldgiftsretten  blir  at  anvende, 
skal  vaere  engelsk,  fransk  eller 
tysk  overensstemmende  med 
beslutning,  som  fattes  av  praesi- 
denten  efter  samraad  med  de 
dvrige  medlemmer. 

Parteme  kan  desuten  i indlaeg. 


THE  GRISBADARNA  CASE 


499 


beviscmedel  och  anforanden  be- 
gagna  nagotdera  landets  sprak, 
skiljedomstolen  obetaget  att  lata 
verkstalla  ofversattning. 

Art.  8 

I afseende  a fdrfarandet  och 
omkostnaderna  skola  i tillampliga 
delar  galla  de  bestammelser,  som 
innefattas  i art.  62-85  af  den  pa 
andra  fredskonferensen  i Haag 
1907  antagna  reviderade  konven- 
tion  for  afgorandet  pa  fredlig  vag 
af  internationella  tvister. 


Inlagor,  repliker  och  bevis- 
medel,  som  afses  i art.  63  mom.  2 
af  namnda  konvention,  skola  del- 
gif  vas  inom  tider,  som  af  skilje- 
domstolens  ordforande  bestam- 
mas,  och  sist  fore  den  1 mars 
1909.  Harigenom  verkas  ej 
rubbning  i foreskrifterna  om 
forfarandets  andra  afdelning, 
sarskildt  icke  i bestammelserna  i 
art.  68-72  och  74  af  samma  kon- 
vention. 

Skiljedomstolen  ager,  nar  den 
for  sakens  upplysning  finner 
nodigt,  anordna  forhor,  i bada 
parternas  narvaro,  med  vittnen 
eller  sakkunniga  samt  foreskrifva 
verkstallandet  af  gemensamma 
hydrografiska  undersokningar 
betraffande  det  tvistiga  omradet. 

Art.  9 

Denna  konvention  skall  ratifi- 
ceras  och  ratifikationerna  utvaxlas 
i Stockholm  snarast  mojligt. 

Till  bekraftelse  haraf  hafva 
vederborande  fullmaktige  under- 
tecknat  denna  konvention  och 
forsett  den  med  sina  sigill. 

Utfardad  i tva  exemplar  pa 
svenska  och  norska  i Stockholm 
den  14  mars  1908. 

(L.  S.)  Eric  Trolle 


bevismidler  og  anforsler  benytte 
hvert  av  de  to  landes  sprog,  idet 
det  er  voldgiftsretten  forbeholdt 
at  foranstalte  oversaettelse. 

Art.  8 

Med  hensyn  til  proceduren  og 
omkostningerne  kommer  til  an- 
vendelse,  forsaavidt  de  kan 
tillempes,  de  bestemmelser,  som 
indeholdes  i artiklerne  62  till  85 
i den  paa  den  anden  fredskon- 
ference  i Haag  i 1907  vedtagne 
reviderede  konvention  om  fre- 
delig  avgjorelse  av  internationale 
stridigheter. 

Indlaeg,  repliker  og  bevis- 
midler, hvortil  sigtes  i art.  63,  2 
avsnit,  i naevnte  konvention,  skal 
meddeles  inden  de  tidsfrister,  som 
av  voldgiftsrettens  praesident 
bestemmes,  og  senest  inden  1 
mars  1909.  Herved  sker  ingen 
aendring  i reglerne  for  procedu- 
rens  anden  avdeling,  specielt  ikke 
i bestemmelserne  i art.  68-72  og 
74  i samme  konvention. 

Voldgiftsretten  har  adgang  til, 
naar  den  for  sakens  oplysning 
finder  det  nodvendigt,  at  foran- 
stalte avhorelse  i begge  parters 
naervaer  av  vidner  og  sakkyndige 
samt  til  at  beslutte  iverksaettelse 
av  faelles  hydrografiske  under- 
sokelser  vedrorende  det  omtvis- 
tede  omraade. 

Art.  9 

Denne  konvention  skal  ratifi- 
ceres  og  ratifikationerne  utvexles 
i Stockhf'lm  snarest  mulig. 

Til  bekraeftelse  herav  har  de 
respektive  befuldmaegtigede  un- 
dertegnet  denne  konvention  og 
forsynet  den  med  sine  segl. 

Udfaerdiget  i to  exemplarer 
paa  svensk  og  norsk  in  Stockholm 
den  14  mars  1908. 

(L.  S.)  Benjamin  Vogt 


500 


ORIGINAL  TEXTS 


Royal  Resolution  of  March  26,  1^04,  with  accompanying  Protocol  of 
March  15,  1904,  concerning  the  Maritime  Boundary  between  Nor- 
way and  Sweden^ 

Under  aberopande  af  bilagda  protokoll  i sammansatt  norskt  och 
svenskt  statsrad  den  15  mars  1904  afvensom  utdrag  af  statsradsproto- 
kollet  ofver  civilarenden  for  denna  dag  vill  Kungl.  Maj  :t  harmed 
foresla  Riksdagen  medgifva,  att  fragan  om  strackningen  af  sjbgransen 
emellan  Sverige  och  Norge  fran  den  i forenamnda  protokoll  omfor- 
malda  punkt  XVIII  ut  i hafvet,  sa  langt  territorialgransen  gar,  ma 
hanskjutas  till  afgorande  af  en  sarskild  skiljedomstol,  i ofverensstam- 
melse  med  hvad  i protokollen  ar  anfordt. 

De  till  arendet  hdrande  handlingar  skola  Riksdagens  vederborande 
utskott  tillhandahallas ; och  Kungl.  Maj  :t  forblifver  Riksdagen  med  all 
kungl.  nad  och  ynnest  stadse  valbevagen. 

Under  Hans  Maj  :ts,  Min  Allemadigste  Konungs  och  Herres 
franvaro: 

GUSTAF 

Hjalmar  Westring 

PROTOKOLL,  HALLET  I SAMMANSATT  NORSKT  OCH  SVENSKT  STATSrAd 
INFOR  HANS  KUNGL.  HOGHET  KRONPRINSEN-REGENTEN  A KRIS- 
TI ANIA  SLOTT  DEN  15  MARS  1904 

Narvarande : Hans  excellens  herr  statsministern  Hagerup,  Hans 
excellens  herr  statsministern  Ibsen,  Hans  excellens  herr  statsministern 
Bostrbm,  Hans  excellens  herr  ministem  for  utrikes  arendena  Lager- 
heim,  Statsraden:  Kildal,  Strugstad,  Hauge,  Schoning,  Vogt,  Mathie- 
sen  och  Svenska  statsradet  Westring. 

Chefen  for  handels-  och  industridepartementet,  statsradet  Schoning 
foredrog  i underdanighet  fdljande: 

Departementet  tillater  sig  att  inkomma  med  underdanigt 
betankande  angaende  atgarder  till  narmare  bestammelse  af  riks- 
gransen  i vattnet  mellan  Sverige  och  Norge. 

Sjbgransen  mellan  de  tvanne  landerna,  som  Ibper  fran  det  inre 
af  Idefjorden  och  ut  till  hafvet,  ar  faststalld  genom  en  grans- 
reglering  af  den  26  oktober  1661,  fbretagen  i bfverensstammelse 
med  fredstraktaterna  i Roskilde  af  den  26  februari-9  mars  1658 
och  i Kbpenhamn  af  den  27  maj-6  juni  1660. 

Det  har  under  tidernas  lopp  hiirskat  osakerhet  om  denna 
granslinje  betraffande  flera  punkter,  i det  att  den  icke  nagon  gang 
under  den  langa  ti'^sperioden  mellan  1661  och  1897  har  gjorts 
till  3 fbremal  fbr  gemensam  besiktning  och  undersbkning. 

Ar  1897  vidtogo  norska  inredepartementet  och  svenska  civil- 
departementet  atgard  fbr  att  sbka  fa  gransens  ratta  strackning 
klargjord,  och  under  augusti  manad  namnda  ar  sammantradde 


^Sweden.  Royal  Resolution  No.  70,  1904. 


THE  GRISBADARNA  CASE 


501 


darefter  tva  norska  och  tva  svenska  kommissarier  for  att,  efter 
genomgaende  af  handlingar  och  undersdkningar  pa  platsen  o.  s.  v., 
afgifva  forslag  till  bestammande  och  angifvande  pa  kartorna  af 
granslinjen  mellan  Norge  och  Sverige  fran  det  inre  af  Idefjorden 
och  ut  till  hafvet. 

De  norska  kommissarierna  voro  expeditionssekreteraren  Hroar 
Olsen  och  kommenddren  A.  Rieck;  de  svenska  kommissarierna 
voro  kommenddren  E.  Oldberg  och  assessoren  H.  Westring. 

Kommissarierna  framlade  den  18  augusti  1897  som  resultat  af 
sina  fdrhandlingar  och  undersdkningar  “kungl.  svenska  och  norska 
kommissionens  fdrslag  till  och  beskrifning  af  sjdgransen  mellan 
Norge  och  Sverige  fran  det  inre  af  Idefjorden  ut  till  hafvet.” 

Det  framgar  af  denna  handling,  som  ar  undertecknad  af  sam- 
tliga  fyra  kommissarierna,  att  enighet  radde  mellan  dessa  om 
granslinjen  fran  det  inre  af  Idefjorden  till  en  punkt  mellan  Jylte 
kummel  (norsk)  och  en  holme  nordvast  om  Norra  Hellsd 
(svensk) — hvilken  punkt  ar  betecknad  som  XVIII  pa  en  fdrslaget 
bilagd  karta — sa  att  Helleholmen  hanfdres  till  Sverige,  Kniv- 
sdarna  till  Norge. 

Med  hansyn  till  granslinjens  strackning  fran  namnda  punkt 
XVIII  och  ut  till  hafvet  uppnaddes  daremot  icke  enighet  inom 
kommissionen.  De  norska  och  de  svenska  medlemmarna  fram- 
stallde  fdr  denna  del  hvar  sitt  sarskilda  fdrslag,  i enlighet  hvarmed 
Grisbadama  tillika  med  nagra  norr  om  Koster  liggande  skar  och 
grund  skulle  tillfalla  respektive  Norge  eller  Sverige. 

Kommissariemas  fdrslag  tillika  med  tva  dartill  hdrande  kartor 
bilaggas. 

Departementet  ar  af  den  asikt,  att  den  af  de  norska  och  de  sven- 
ska kommissarierna  gemensamt  fdreslagna  linjen  fran  det  inre  af 
Idefjorden  till  punkt  XVIII  pa  de  fdrslaget  medfdljande  kartor 
bdr  anses  som  den  riktiga  granslinjen.  I dett  att  med  hansyn  till 
den  narmare  beskrifningen  af  denna  linje  hanvisas  till  kommis- 
sariemas fdrslag,  tillater  departementet  sig  att  hemstalla,  att  lin- 
jen af  Eders  Maj  :t  godkannes  sasom  den  ratta  gransen  mellan 
rikena. 

Sa  framt  Eders  Maj  :t  behagade  fatta  beslut  i dfverensstam- 
melse  melse  harmed,  fdrutsatter  departementet,  att  darefter  kungl. 
kungd  reiser  angaende  den  godkanda  granslinjen  utfardas  i 
hvartdera  rikets  sarskilda  statsrad. 

Det  torde  vidare  bdra  framhallas,  att  det  ar  af  betydelse,  att 
snarast  mdjligt  ett  utmarkande  af  den  har  omhandlade  delen  af 
sjdgransen  ma  aga  rum.  Den  andamalsenligaste  ordningen  synes 
vara  att  en  kommissarie  fdr  hvart  rike  utses  att  fdretaga  detta 
utmarkande,  och  departementet  tillstyrker  darfdr  Eders  Maj  :t  att 
bifalla  detta,  i det  att  departementet  utgar  ifran  att  i sa  fall  i 
hvartdera  rikets  sarskilda  statsrad  utnamnas,  respektive  en  norsk 
och  en  svensk  kommissarie. 

Som  ofvan  anfdrts,  uppnadde  de  norska  och  de  svenska  kom- 


502 


ORIGINAL  TEXTS 


missariema  icke  enighet  med  afseende  a fragan  om  gransens 
ratta  strackning  fran  omformalda  punkt  XVIII  ut  till  hafvet. 

Har  nedan  larrmas  en  narmare  beskrifning  a den  omtvistade 
granslinjen,  sadan  som  den  Iran  norsk  och  Iran  svensk  sida  iir 
afsedd  att  bora  ga. 

De  Norska  Kommissariernas  Uppfattning 

Fran  den  som  punkt  XVIII  betecknade  punkten  mellan  Jylte 
kummel  och  en  holme  nordvast  om  Norra  Hellso  bbr  gransen 
dragas  i rat  linje  ut  i oppna  hafvet  genom  midtpunkten  af  en  rat 
linje,  dragen  fran  sydspetsen  af  den  sydligaste  norska  Tislardn, 
Kloveren,  till  nordspetsen  af  norra  Kostero  (svensk),  sa  att 
granslinjen  gar  ofver  Batshakegrundet  och  att  alia  norr  om  denna 
granslinje  liggande  holmar,  skar  och  grund,  daribland  Grisbadama, 
blifva  norska. 

Linjen  ar  pa  kommissariernas  karta  betecknad  med  ful  farg, 
och  den  omnamnda  punkten  mellan  Kloveren  och  norra  Kostero 
betecknad  som  punkt  XIX. 

De  Svenska  Kommissariernas  Uppfattning 

Fran  punkt  XVIII  bbr  gransen  dragas  i rat  linje  ut  till  oppna 
hafvet  genom  en  punkt  omkring  300  meter  norr  om  Rbdskars 
Nordgrund  och  darefter  ungefar  midt  mellan  Grisbadama  och 
Skbttegrunden  sa,  att  alia  sbder  om  denna  linje  liggande  holmar, 
skar  och  grund,  daribland  Grisbadama,  blifva  svenska. 

Linjen  ar  pa  kommissariernas  karta  betecknad  med  gul  farg, 
och  den  namnda  punkten  norr  om  Rbdskars  Nordgrund  betecknad 
som  punkt  XIX. 

Delta  departement  tillater  sig  underdanigst  att  fbresla,  att 
fragan  om  den  omtvistade  granslinjen  hanskjutes  till  afgbrande 
genom  skiljedom  af  en  sarskild  domstol,  sedan  samtycke  hartill 
gifvits  af  bagge  rikenas  representationer,  och  att  man  harvid  fbr- 
far  pa  fbljande  satt: 

I hvartdera  rikets  sarskilda  statsrad  utses  tva  skiljeman. 

Skiljemannen  valja  gemensamt  pa  fbrhand  en  femte  skiljeman, 
som  tillika  fungerar  som  domstolens  ordfbrande.  Vid  lika  rbstetal 
anfbrtros  valet  af  femte  skiljeman  till  det  frammande  statsbfver- 
hufvud,  som  Hans  Maj  ;t  Konungen  darom  anmodar. 

Reglerna  fbr  domstolens  arbetsordning  och  fbr  fbrhandlingama 
afvensom  fbr  dess  sate  bestammas  af  domstolen  sjalf. 

Den  i behbrig  ordning  afkunnade  skiljedomen  angaende  den 
omtvistade  granslinjens  ratta  strackning  skall  vara  slutligt  bin- 
dande  fbr  bagge  parterna. 

Hvartdera  riket  bestrider  de  omkostnader  fbr  skiljedomen,  som 
anga  det  allena,  hvaremot  de  gemensamma  utgifterna  sasom  till 
den  femte  skiljemannen  o.  s.  v.  fbrdelas  med  halften  pa  hvartdera 
riket. 


THE  GRISBADARNA  CASE 


503 


I ofverensstammelse  med  ofvanstaende  tillater  sig  departementet 
underdanigst  hemstalla: 

att  Eders  Maj  :t  behagade  i nader  bestamma: 

1“.)  att  den  af  de  norska  och  de  svenska  kommissarierna  ar  1897 
gemensamt  fdreslagna  granslinjen  mellan  Norge  och  Sverige  fran  det 
inre  af  Idefjorden  till  punkt  XVIII  pa  tva,  kommissariernas  forslag 
bifogade  kartor  godkannes; 

2°.)  att  utmarkande  af  denna  granslinje  skall  foretagas  af  dartill 
utsedda  kommissarier,  en  fran  hvartdera  riket; 

3°.)  att  fragan  om  granslinjen  mellan  Norge  och  Sverige  fran 
ofvannamnda  punkt  XVIII  ut  i hafvet,  sa  langt  territorialgransen  gar, 
hanskjutes  till  afgdrande  af  en  sarskild  skiljedomstol,  i ofverensstam- 
melse med  hvad  har  ofvan  anforts,  for  savidt  de  tva  rikenas  represen- 
tationer  dartill  gifva  sitt  samtycke. 

De  svenska  ledanwterna  af  statsradet  instamde  i hvad  foredragan- 
den  hemstallt  betraffande  godkannande  af  den  utaf  de  svenska  och  de 
norska  kommissarierna  fdreslagna  granslinjen  fran  det  inre  af  Idef- 
jorden till  den  namnda  punkten  XVIII  samt  denna  granslinjes 
utmarkande. 

Hvad  angick  gransens  strackning  fran  punkten  XVIII  ut  i hafvet 
intill  territorialgransen,  anmalde  dessa  ledamdter,  att  uti  flera  i 
arendet  inkomma  utlatanden  framstallts  forslag  till  granslinjens 
bestammande  salunda,  att  denna  linje  delvis  komme  att  dragas  annu 
nagot  nordligare  an  de  svenska  kommissarierna  fdreslagit.  Under 
uttalande,  med  hansyn  hartill,  af  den  uppfattning  att  fdrslaget  om 
dfverlamnande  till  en  sarskild  skiljedomstol  att  afgdra  fragan  om 
gransens  strackning  i denna  del  innebure,  att  parterna  a dmse  sidor 
skulle  aga  att,  utan  att  vara  bundna  enhvar  af  sina  kommissariers 
forslag,  infer  domstolen  framstalla  de  pastaenden  i namnda  hanseende, 
hvartill  de  kunde  finna  sig  befogade,  bitradde  dessa  ledamdter  fdre- 
dragandems  forslag  jamval  i denna  del. 

De  norska  medlemmarna  af  statsradet  hade  intet  att  anmarka  mot 
ofvanstaende  anfdrande,  som  dfverensstamde  med  hvad  som  ocksa 
fran  norsk  sida  hade  fdrutsatts. 

I enlighet  med  hvad  statsradets  ledamdter  salunda  tillstyrkt, 
behagade  Hans  Kungl.  Hdghet  Kronprinsen-Regenten  bifalla  det  af 
chefen  fdr  norska  handelsoch  industridepartementet  framstallda 
fdrslaget. 


THE  ORINOCO  STEAMSHIP  COMPANY  CASE 


Award  of  the  Tribunal,  October  2^,  igio^ 

Par  un  Compromis  signe  a Caracas  le  13  fevrier  1909,  les  Etats-Unis 
d’Amerique  et  du  Venezuela  se  sont  mis  d’accord  pour  soumettre  a un 
Tribunal  arbitral,  compose  de  trois  Arbitres  choisis  parmi  les  Mem- 
bres  de  la  Cour  permanente  d’ Arbitrage,  une  reclamation  des  Etats- 
Unis  d’Amerique  envers  les  Etats-Unis  du  Venezuela ; 

Ce  compromis  porte : 

“Le  Tribunal  arbitral  decidera  d’abord  si  la  Sentence  du  Surarbitre 
Barge  en  cette  affaire,  en  vue  de  toutes  les  circonstances  et  d’apres  les 
principes  de  droit  international,  n’est  pas  entachee  de  nullite  et  si  elle 
doit  etre  consideree  comme  concluante  au  point  d’exclure  un  nouvel 
examen  du  cas  sur  le  fond.  Si  le  Tribunal  arbitral  d^ide  que  la  dite 
Sentence  doit  etre  consideree  comme  definitive,  I’affaire  sera  con- 
sideree par  les  Etats-Unis  d’Amerique  comme  terminee ; mais  si,  par 
contre,  le  Tribunal  arbitral  decide  que  la  dite  Sentence  du  Surarbitre 
Barge  ne  doit  pas  etre  consideree  comme  definitive,  le  dit  Tribunal 
arbitral  devra  alors  entendre,  examiner  et  resoudre  I’affaire  et  rendre 
sa  decision  sur  le  fond 

En  execution  du  dit  Compromis,  les  deux  Gouvernements  ont 
resp>ectivement  nomme  Arbitres  les  Membres  suivants  de  la  Cour  per- 
manente d’Arbitrage : 

Son  Excellence  Monsieur  Gonzalo  de  Quesada,  Envoye  extraordi- 
naire et  Ministre  plenipotentiaire  de  Cuba  a Berlin,  etc. ; 

Son  Excellence  Monsieur  A.  Beernaert,  Ministre  d’Etat,  Membre 
de  la  Chambre  des  Representants  Beige,  etc. ; 

Et  en  vertu  du  dit  Compromis,  les  Arbitres  ainsi  designes  ont 
nomme  Surarbitre : 

Monsieur  H.  Lammasch,  Professeur  a I’Universite  de  Vienne,  Mem- 
bre de  la  Chambre  des  Seigneurs  du  Parlement  Autrichien,  etc. ; 

Les  Memoires,  Contre-Memoires  et  Conclusions  ont  ete  dument 
soumis  aux  Arbitres  et  communiques  aux  Parties ; 

Les  Parties  ont  plaide  et  replique ; I’une  et  I’autre  ont  plaide  le  fond 
en  meme  temps  que  la  question  prealable  et  les  debats  ont  ete  declares 
clos  le  19  octobre  1910; 

Sur  quoi,  le  Tribunal  apres  en  avoir  murement  delibere,  rend  la 
Sentence  suivante: 

Considerant  qu’aux  termes  d’un  Compromis  en  date  du  17  fevrier 
1903  une  Commission  Mixte  a ete  chargee  de  decider  toutes  les 
reclamations  exercees  (owned — poseidas)  p>ar  des  citoyens  des  Etats- 


*Official  report,  p.  54. 


THE  ORINOCO  STEAMSHIP  COMPANY  CASE 


505 


Unis  d’Amerique  a I’encontre  des  Etats-Unis  du  Venezuela,  qui 
n’auraient  point  ete  reglees  par  un  accord  diplomatique  ou  par  un 
arbitrage  entre  les  deux  Gouvemements  et  qui  seraient  presentees  par 
les  Etats-Unis  d’Amerique ; un  Surarbitre,  a designer  par  Sa  Majeste 
la  Reine  des  Pays-Bas,  devait  eventuellement  trancher  toute  question 
sur  laquelle  les  Commissaires  seraient  en  desaccord  par  une  decision 
definitive  (final  and  conclusive — definitiva  y concluyente)  ; 

Considerant  que  le  Surarbitre  ainsi  design e,  M.  Barge,  a statue 
sous  la  date  du  22  fevrier  1904,  sur  les  dites  reclamations ; 

Considerant  qu’il  est  assurement  de  I’interet  de  la  paix  et  du  deve- 
loppement  de  I’institution  de  I’arbitrage  international  si  essentiel  pour 
le  bien-etre  des  nations,  qu’en  principe  semblable  decision  soit  ac- 
ceptee,  respectee  et  executee  par  les  Parties  sans  aucune  reserve,  ainsi 
qu’il  est  present  par  I’article  81  de  la  Convention  pour  le  reglement 
pacifique  des  conflits  internationaux  du  18  octobre  1907  que  d’ailleurs, 
aucune  juridiction  n’est  instituee  pour  reformer  de  semblables  decisions ; 

Mais  considerant  que  dans  I’espece,  la  sentence  ayant  ete  arguee  de 
nullite,  il  est  advenu  entre  les  Parties,  sous  la  date  du  13  fevrier  1909, 
un  nouveau  Compromis,  d’apres  lequel,  sans  tenir  compte  du  caractere 
definitif  de  la  premiere  sentence,  ce  Tribunal  est  appele  a decider,  si  la 
sentence  du  Surarbitre  Barge,  en  vertu  de  toutes  les  circonstances  et 
d’apres  les  principes  du  droit  international,  n’est  pas  entachee  de 
nullite  et  si  elle  doit  etre  consideree  comme  concluante  au  point 
d’exclure  un  nouvel  examen  au  fond ; 

Considerant  que  par  le  Compromis  du  13  fevrier  1909,  les  deux 
Parties  admettent  au  moins  implicitement,  comme  vices  entrainant  la 
nullite  d’une  sentence  arbitrale,  I’exces  de  pouvoir  et  I’erreur  essentielle 
dans  le  jugement  (excessive  exercise  of  jurisdiction  and  essential  error 
in  the  judgment — exceso  de  poder  y error  esencial  en  el  fallo)  ; 

Considerant  que  la  Partie  demanderesse  allegue  I’exces  de  pouvoir 
et  de  nombreuses  erreurs  de  droit  et  de  fait  equivalent  a I’erreur 
essentielle ; 

Considerant  que,  d’apres  les  principes  de  I’equite  d’accord  avec  le 
droit,  lorsque  une  sentence  arbitrale  comporte  divers  chefs  inde- 
pendants de  demande  et  partant  diverses  decisions,  la  nullite  eventuelle 
de  I’une  est  sans  influence  quant  aux  autres  et  cela  surtout  lorsque, 
comme  dans  I’espece  I’integrite  et  la  bonne  foi  de  I’arbitre  ne  sont  pas 
en  question ; qu’il  y a done  lieu  de  statuer  separement  sur  chacun  des 
points  en  litige ; 

I.  Quant  aux  1,209,701.04  Dollars; 

Considerant  que  ce  Tribunal  est  appele  en  premier  lieu  a decider  si 
la  sentence  du  Surarbitre  est  entachee  de  nullite  et  si  elle  doit  etre 
consideree  comme  concluante ; que  dans  le  cas  seulement  ou  la  sentence 
du  Surarbitre  serait  declaree  nulle,  le  Tribunal  aurait  a statuer  au 
fond ; 

Considerant  qu’il  est  allegue  que  le  Surarbitre  se  serait  ecarte  des 
termes  du  Compromis  en  relatant  inexactement  le  contrat  Grell  et  la 


506 


ORIGINAL  TEXTS 


pretention  a laquelle  celui-ci  servait  de  base,  et  que  par  suite  il  serait 
tombe  dans  une  erreur  essentielle,  mais  que  la  sentence  reproduit 
textuellement  le  dit  contrat  et  dans  son  entiere  teneur;  qu’il  est 
d’autant  moins  admissible  que  le  Surarbitre  en  aurait  mal  compris 
le  texte  et  aurait  excede  sa  competence  et  decide  sur  une  reclamation 
qui  ne  lui  etait  pas  soumise,  en  meconnaissant  la  relation  de  la  con- 
cession en  question  a la  navigation  exterieure,  alors  qu’il  a decide  in 
terminis,  que  le  permis  de  naviguer  par  ces  canaux  (Marcareo  et 
Pedernales)  etait  seulement  ajoute  au  permis  de  toucher  a Trinidad 
(“when  the  permission  to  navigate  these  channels  was  only  annexed 
to  the  permission  to  call  at  Trinidad”)  ; 

Considerant  que  I’appreciation  des  faits  de  la  cause  et  I’interpreta- 
tion  des  documents  etait  de  la  competence  du  Surarbitre  et  que  ses 
decisions  en  tant  qu’elles  sont  fondees  sur  pareille  interpretation  ne 
sont  pas  sujettes  a etre  revisees  par  ce  Tribunal,  qui  n’a  pas  la  mission 
de  dire,  s’il  a ete  bien  ou  mal  juge,  mais  si  le  jugement  doit  etre  annule ; 
que  si  une  sentence  arbitrale  pouvait  etre  querellee  du  chef  d’apprecia- 
tion  erronee,  I’appel  et  la  revision,  que  les  Conventions  de  La  Haye  de 
1899  et  1907  ont  eu  pour  but  d’ecarter,  seraient  de  regie  generale; 

Considerant  que  le  point  de  vue  sous  lequel  le  Surarbitre  a en- 
visage la  demande  des  $513,000 — plus  tard  reduite  dans  les  con- 
clusions des  Etats-Unis  d’Amerique  a $335,000  et  partie  de  la  predite 
somme  de  $1,209,701.04 — est  la  consequence  de  son  interpretation  du 
contrat  du  10  mai  1900  et  de  la  relation  de  ce  contrat  au  decret  du 
meme  jour ; 

Considerant  que  la  circonstance  que  le  Surarbitre,  ne  se  contentant 
pas  d’avoir  fonde  sa  sentence  sur  son  interpretation  des  contrats,  motif 
qui  en  lui-meme  doit  etre  considere  comme  suffisant,  a invoque  sub- 
sidiairement  d’autres  raisons  d’un  caractere  plutot  technique,  ne  pent 
pas  vicier  sa  decision ; 

II.  Quant  aux  19,200  Dollars  (100,000  BolIvares)  : 

Considerant  que  le  Compromis  du  17  fevrier  1903  n’investissait  pas 
les  Arbitres  d’un  pouvoir  discretionnaire,  mais  les  obligeait  de  rendre 
leur  sentence  sur  la  base  de  I’equite  absolue  sans  tenir  compte  d’objec- 
tions  de  nature  technique  ou  de  dispositions  de  la  legislation  locale 
(con  arreglo  absoluto  a la  equidad,  sin  reparar  en  objeciones  tecnicas, 
ni  en  las  disposiciones  de  la  legislacion  local — upon  a basis  of  absolute 
equity,  without  regard  to  objections  of  a technical  nature,  or  of  the 
provisions  of  local  legislation)  ; 

Considerant  que  I’exces  de  pouvoir  peut  consister  non  seulement  a 
decider  une  question  non  soumise  aux  Arbitres,  mais  aussi  a mecon- 
naitre  les  dispositions  imperatives  du  Compromis  quant  a la  voie 
d’apres  laquelle  ils  doivent  arreter  leurs  decisions,  notamment  en  ce 
qui  concerne  la  loi  ou  les  principes  de  droit  a appliquer ; 

Considerant  que  le  rejet  de  la  demande  des  19,200  dollars  n’est 
motive  que  1°.  par  I’absence  de  tout  appel  a la  Justice  Venezuelienne 
et  2°.  par  le  defaut  de  notification  prealable  de  la  cession  au  debiteur. 


THE  ORINOCO  STEAMSHIP  COMPANY  CASE 


507 


“la  circonstance  qu’on  pourrait  se  demander  si  le  jour  ou  cette  re- 
clamation fut  enregistree,  la  dette  etait  exigible”  ne  pouvant  evidem- 
ment  servir  de  justification  au  dit  rejet; 

Considerant  qu’il  resulte  des  Compromis  de  1903  et  de  1909 — ^base 
du  present  arbitrage — que  les  Etats-Unis  du  Venezuela  avaient  renonce 
conventionellement  a faire  valoir  les  dispositions  de  I’article  14  du 
contrat  Grell  et  de  I’article  4 du  contrat  du  10  mai  1900 ; qu’a  la  date 
des  dits  Compromis  il  etait  en  effet  constant  qu’aucun  litige  entre  ces 
Parties  n’avait  ete  defere  aux  Tribunaux  Venezueliens  et  que  le  main- 
tien  de  la  juridiction  Venezuelienne  quant  a ces  reclamations  eut  ete 
incompatible  et  inconciliable  avec  I’arbitrage  institue; 

Considerant  qu’il  ne  s’agissait  pas  de  la  cession  d’une  concession, 
mais  de  la  cession  d’une  creance,  que  le  defaut  de  notification  prealable 
de  la  cession  d’une  creance  n’est  que  I’inobservation  d’une  prescription 
de  la  legislation  locale  et  bien  que  pareille  prescription  se  trouve  aussi 
dans  d’autres  legislations,  elle  ne  peut  etre  consideree  comme  exigee 
par  I’equite  absolue,  au  moins  lorsqu’en  fait,  le  debiteur  a eu  connais- 
sance  de  la  cession  et  qu’il  n’a  pas  plus  paye  sa  dette  au  cedant  qu’au 
cessionnaire ; 

III.  Quant  aux  147,638.79  Dollars  : 

Considerant  qu’en  ce  qui  concerne  les  1,053  dollars  pour  transport 
de  passagers  et  marchandises  en  1900  et  les  25,845.20  dollars  pour 
loyer  des  bateaux  a vapeur  Delta,  Socorro,  Masparro,  Guanare,  Heroe 
de  juillet  1900  a avril  1902,  la  sentence  du  Surarbitre  ne  se  fonde  que 
sur  le  defaut  de  notification  prealable  de  la  cession  au  Gouvernement 
du  Venezuela  ou  d’acceptation  par  lui,  et  que,  comme  il  a ete  deja  dit, 
ce  moyen  de  defense  etait  ecarte  par  le  Compromis ; 

Considerant  qu’on  pourrait  en  dire  autant  de  la  demande  des 
19,571.34  dollars  pour  remboursement  d’impots  nationaux  qui  auraient 
ete  illegalement  pergus  et  de  celle  des  3,509.22  dollars  du  chef  de  la 
retention  du  “Bolivar,”  mais  qu’il  n’est  pas  prouve,  d’une  part  que  les 
impots  dont  il  s’agit  etaient  de  ceux  dont  la  Orinoco  Shipping  and 
Trading  Company  etait  exempte,  d’autre  part  que  le  fait  querelle  pro- 
cederait  d’un  abus  d’autorite  de  la  part  du  Consul  Venezuelien  et 
qu’ainsi  ces  deux  demandes  devant  etre  rejetees  au  fond,  quoique  par 
d’autres  motifs,  I’annullation  de  la  sentence  en  ce  point  serait  sans 
interet ; 

Considerant  que  la  decision  du  Surarbitre  allouant  27,692.31  dollars 
au  lieu  de  28,461.53  dollars  pour  retention  et  loyer  du  Masparro  et 
Socorro  du  21  mars  au  18  septembre  1902,  est  quant  aux  769.22  dol- 
lars non  alloues,  id  encore  uniquement  fondee  sur  le  defaut  de  notifi- 
cation de  la  cession  de  la  creance; 

Considerant  que  la  decision  du  Surarbitre  quant  aux  autres  demandes 
rentrant  dans  ce  chef  pour  la  periode  posterieure  au  1 avril  1902  est 
fondee  sur  des  appreciations  des  faits  et  sur  une  interpretation  de 
principes  de  droit  qui  ne  sont  pas  sujettes  ni  a nouvel  examen  ni  a 
revision  par  ce  Tribunal,  les  decisions  intervenues  sur  ces  points  n’etant 
pas  entachees  de  nullite ; 


508 


ORIGINAL  TEXTS 


IV.  Quant  aux  25,000  Dollars; 

Considerant  que  la  demande  de  25,000  dollars  pour  honoraires, 
depenses  et  debours  a ete  rejetee  par  le  Surarbitre  en  consequence  du 
rejet  de  la  plupart  des  reclamations  des  Etats-Unis  d’Amerique,  et 
que — par  la  presente  sentence — quelques-unes  de  ces  reclamations  etant 
admises,  il  parait  equitable  d’allouer  une  partie  de  cette  somme,  que 
le  Tribunal  fixe  ex  aequo  et  bono  a 7,000  dollars ; 

Considerant  que  la  loi  Venezuelienne  fixe  I’interet  legal  a 3%  et 
que,  dans  ces  conditions,  le  Tribunal,  tout  en  constatant  en  fait  I’in- 
suffisance  de  ce  taux,  ne  pent  allouer  d’avantage ; 

Par  ces  Motifs: 

Le  Tribunal  declare  nulle  la  sentence  du  Surarbitre  M.  Barge  en 
date  du  22  fevrier  1904,  quant  aux  quatre  points  suivants : 

1°.  les  19,200  dollars; 

2°.  les  1,053  dollars; 

3°.  les  25,845.20  dollars; 

4°.  les  769.22  dollars  deduits  da  la  reclamation  des  28,461.53  dol- 
lars pour  retention  et  loyer  du  Masparro  et  Socorro; 

Et  statuant,  en  consequence  de  la  nullite  ainsi  constatee,  et  a raison 
des  elements  soumis  a son  appreciation : 

Declare  ces  chefs  de  demande  fondes  et  alloue  aux  Etats-Unis 
d’Amerique,  independamment  des  sommes  allouees  par  la  sentence  du 
Surarbitre  du  22  fevrier  1904,  les  sommes  de: 

1°.  19,200  dollars ; 3°.  25,845.20  dollars ; 

2°.  1 ,053  dollars ; 4°.  769.22  dollars ; 

le  tout  avec  interet  a 3 pet.  depuis  la  date  de  la  demande  (16  juin 
1903)  et  a payer  dans  les  deux  mois  de  la  presente  sentence; 

alloue  en  outre  a titre  d’indemnite  pour  remboursement  de  frais  et 
honoraires  7,000  dollars ; 

rejette  la  demande  pour  le  surplus ; la  sentence  du  Surarbitre  M. 
Barge  du  22  fevrier  1904  devant  conserver  en  dehors  des  points 
ci-dessus,  son  plein  et  entier  effet. 

Fait  a La  Haye,  dans  I’Hotel  de  la  Cour  permanente  d’Arbitrage, 
en  triple  exemplaire,  le  25  octobre  1910. 

Le  President:  Lammasch 
Le  Secretaire  general:  Michiels  van  Verduynen 


Agreement  for  Arbitration,  February  ij,  jpop^ 

El  Doctor  Francisco  Gonzalez  Guinan,  Ministro  de  Relaciones  Ex- 
teriores  de  los  Estados  Unidos  de  Venezuela,  debidamente  autorizado 
por  el  General  Juan  Vicente  Gomez,  Vicepresidente  de  los  Estados 
Unidos  de  Venezuela,  Encargado  de  la  Presidencia  de  la  Republica, 


^Official  report,  p.  9. 


THE  ORINOCO  STEAMSHIP  COMPANY  CASE 


509 


y William  I.  Buchanan,  Alto  Comisionado,  Representante  del  Presi- 
dente  de  los  Estados  Unidos  de  America,  habiendose  exhibido  y en- 
contrado  en  forma  sus  respectivos  poderes,  y anomados  del  espiritu 
de  franca  amistad  que  siempre  ha  existido  y debe  existir  entre  las 
dos  Naciones  que  representan,  han  tratado  en  repetidas  y prolongadas 
conferencias  de  la  manera  de  arreglar  amistosa  y equitativamente  las 
diferencias  que  existen  entre  sus  respectivos  Gobiemos  con  respecto 
a las  reclamaciones  pendientes  entre  las  dos  Naciones,  pues  ni  los 
Estados  Unidos  de  Venezuela  ni  los  Estados  Unidos  de  America  aspi- 
ran  a otra  cosa  que  al  sostenimiento  de  lo  que  en  justicia  y equidad 
les  corresponda ; y como  resultado  de  estas  conferencias,  han  recono- 
cido  la  grande  importancia  del  arbitraje  como  medio  de  mantener  la 
buena  armonia  que  debe  existir  y desarrollarse  entre  sus  respectivas 
Naciones  y a fin  de  evitar  en  lo  futuro,  en  todo  lo  posible,  diferencias 
entre  ellas,  creen  que  es  de  todo  punto  conveniente  que  un  Tratado  de 
Arbitramento  sea  ajustado  entre  sus  respectivos  Gobiernos. 

Con  respecto  a las  reclamaciones  que  han  sido  el  tema  de  sus  largas 
y amistosas  conferencias,  el  Doctor  Francisco  Gonzalez  Guinan  y 
William  I.  Buchanan  han  encontrado  que  las  opiniones  y puntos  de 
vista  sostenidos  por  sus  respectivos  Gobiernos  han  sido  y son  tan 
diametralmente  opuestos  y distintos,  que  han  encontrado  dificil  resol- 
verlos  de  comun  acuerdo,  por  lo  cual  tienen  que  apelar  a la  medida 
conciliatoria  del  arbitraje,  medida  a la  cual  las  dos  Naciones  que  repre- 
sentan estan  ligadas  entre  si  por  sus  firmas  a los  tratados  de  la  Se- 
gunda  Conferencia  de  la  Paz  de  La  Haya  de  1907,  y que  esta  recono- 
cida  p>or  todo  el  mundo  civilizado  como  el  unico  modo  satisfactorio 
para  solucionar  los  conflictos  internacionales. 

Convencidos  asi  y firmes  en  sus  propositos  de  no  permitir  que  por 
ningTin  motivo  se  perturbe  la  cordialidad  que  siempre  ha  existido  entre 
sus  respectivos  Paises,  los  expresados  Senores  Doctor  Francisco 
Gonzalez  Guinan  y William  I.  Buchanan,  ampliamente  autorizados  al 
efecto,  han  ajustado,  convenido  y firmado  el  Presente  Protocolo  para 
el  arreglo  de  dichas  reclamaciones  contra  los  Estados  Unidos  de  Vene- 
zuela, que  son  las  siguientes : 

1.  La  reclamacion  de  los  Estados  Unidos  de  America  en  favor  de 
la  Orinoco  Steamship  Company; 

2.  La  reclamacion  de  los  Estados  Unidos  de  America  en  favor  de 
la  Orinoco  Corporation  y de  sus  causantes.  The  Manoa  Company 
Limited,  The  Orinoco  Company  y The  Orinoco  Company  Limited;  y 

3.  La  reclamacion  de  los  Estados  Unidos  de  America  en  favor  de 
la  United  States  and  Venezuela  Company  (tambien  conocida  como  la 
reclamacion  Crichfield). 

Articulo  1 

Con  respecto  a la  primera  de  esas  reclamaciones,  la  de  la  Orinoco 
Steamship  Company,  los  Elstados  Unidos  de  Venezuela  han  sostenido 
la  inmutabilidad  del  fallo  arbitral  del  Superarbitro  Barge  librado  en 
este  caso,  alegando  que  dicho  fallo  no  adolece  de  ninguna  de  las 
causales  que  por  jurisprudencia  universal  dan  lugar  a nulidad,  sino 


510 


ORIGINAL  TEXTS 


que  antes  bien  reviste  el  caracter  de  inapelable,  pues  no  puede  tenerse 
por  nulo  el  Compromiso  de  Arbitraje,  ni  ha  habido  exceso  de  poder, 
ni  puede  alegarse  corrupcion  de  jueces,  ni  error  esencial  en  el  fallo; 
y por  otra  parte,  los  Estados  Unidos  de  America,  alegando  casos 
practices,  entre  ellos  el  caso  de  la  revision,  por  consentimiento  de  los 
Estados  Unidos  de  America,  de  los  fallos  arbitrales  dictados  por  la 
Comision  Mixta  Venezolano — Americana,  creada  por  la  Convencion 
del  25  de  abril  de  1866,  y fundandose  en  las  circunstancias  del  caso 
y considerando  los  preceptos  de  derecho  internacional  y de  jurispru- 
dencia  universal,  ban  sostenido  no  solo  la  admisibilidad  sino  la  necesi- 
dad  de  la  revisidn  de  dicho  fallo ; en  consecuencia  de  esta  situacion, 
el  Doctor  Francisco  Gonzalez  Guinan  y William  I.  Buchanan  con  el 
espiritu  que  ha  distinguido  sus  conferencias,  han  convenido  en  someter 
este  caso  al  alto  criterio  del  Tribunal  Arbitral  creado  por  este  Proto- 
colo,  en  la  forma  siguiente: 

El  Tribunal  Arbitral  debe  decidir  primero  si  el  fallo  del  Superar- 
bitro  Barge,  en  este  caso,  bajo  todas  las  circunstancias  y los  preceptos 
de  derecho  internacional,  no  esta  viciado  de  nulidad  y tiene  que  con- 
siderarse  concluyente  hasta  excluir  un  nuevo  examen  del  caso  en  su 
fondo.  Si  el  Tribunal  Arbitral  falla  que  debe  considerarse  dicho  fallo 
concluyente,  el  caso  sera  aceptado  como  concluido  por  los  Estados 
Unidos  de  America;  pero,  si  por  otra  parte,  el  Tribunal  Arbitral  decide 
que  dicho  fallo  del  Superarbitro  Barge  no  debe  considerarse  definitivo, 
el  mismo  Tribunal  Arbitral  debe  entonces  examinar,  oir  y determinar 
el  caso  y librar  su  fallo  en  su  fondo. 

ARTfcULO  2 

En  el  curso  de  las  muchas  conferencias  celebradas  con  resp>ecto  al 
asunto  de  los  Estados  Unidos  de  America  por  parte  de  la  Orinoco 
Corporation  y de  sus  causantes,  contra  los  Estados  Unidos  de  Vene- 
zuela, entre  el  Doctor  Francisco  Gonzalez  Guinan,  Ministro  de  Rela- 
ciones  Exteriores  de  Venezuela,  y William  I.  Buchanan,  Alto  Comisio- 
nado,  Representante  del  Presidente  de  los  Estados  Unidos  de  Ame- 
rica, han  encontrado  que  las  opiniones  y consideraciones  sostenidas 
por  sus  respectivos  Gobiernos  con  respecto  a los  derechos  y reclama- 
ciones  de  la  Compania  reclamante  son  tan  diametralmente  opuestas 
entre  si,  que  hacen  imposible  conciliarlas  por  medio  de  negociaciones 
directas  entre  sus  Gobiernos. 

Entre  estas  han  encontrado  que  los  Estados  Unidos  de  America  por 
parte  de  la  Compania  reclamante  sostienen  que,  tanto  por  el  acto  del 
Congreso  Nacional  de  Venezuela  como  por  Resoluciones  y otros  actos 
de  su  Poder  Ejecutivo,  los  derechos  y reclamaciones  mantenidos  y 
reclamados  por  los  Estados  Unidos  de  America  por  parte  de  la  Com- 
pahia  reclamante  en  la  concesidn  Fitzgerald,  origen  del  presente  caso, 
y conforme  a ella,  son  firmemente  reconocidos  y afirmados  como  sub- 
sistentes  y validos,  y que  el  Gobierno  de  Venezuela  ha  insistido  e in- 
siste  en  que  el  fallo  del  Superarbitro  Barge  del  12  de  abril  de  1904, 
que  Venezuela  considera  irrevocable,  y la  sentencia  dictada  por  la 


THE  ORINOCO  STEAMSHIP  COMPANY  CASE 


511 


Corte  Federal  y de  Casacion  de  Venezuela,  el  18  de  marzo  de  1908, 
son  por  si  una  prueba  concluyente  de  que  no  existen  los  derechos  ni 
las  pretensiones  de  la  Compania  reclamante,  pues  la  expresada  Com- 
pania,  aun  aceptando  ser  cesionaria  de  las  otras,  no  llego  a constituirse 
de  conformidad  con  las  leyes  de  Venezuela,  y aun  habiendose  consti- 
tuido,  de  antemano  quedaba  sometida  a las  leyes  venezolanas  y acep- 
tado  que  estas  debian  regir  y decidir  las  contenciones  y diferencias 
que  pudieran  ocurrir;  mientras  que  los  Estados  Unidos  de  America 
por  parte  de  la  Compania  reclamante  se  ban  negado  y se  niegan  a 
aceptar  de  manera  alguna  que  ni  el  fallo  del  Superarbitro  Barge  ni 
el  de  la  Corte  Federal  y de  Casacion  de  Venezuela  puedan  terminar 
6 hayan  terminado  6 eliminado  los  derechos  y reclamaciones  alegados 
por  la  Compania  reclamante  de  acuerdo  con  dicho  contrato  Fitzgerald, 
sino  que  por  el  contrario  los  derechos  y reclamaciones  alegados  en 
esta  materia  por  la  Compania  reclamante  son  validos  y subsistentes. 

En  vista  de  estas  y otras  conclusiones  igualmente  contrarias,  alcan- 
zadas  y persistentemente  sostenidas  por  sus  respectivos  Gobiernos  con 
respecto  a este  caso,  los  mencionados  Representantes,  animados  por 
un  firme  proposito  de  hacer  todo  lo  que  este  a su  alcance  para  con- 
servar  y fomentar  una  buena  inteligencia  entre  sus  Gobiernos,  y con 
el  deseo  expreso  de  allegar  los  medios  para  un  arreglo  de  las  diferen- 
cias que  entre  ellos  existen  con  respecto  a este  caso,  en  justicia  y 
equidad,  no  pueden  salirse  de  la  conclusion  de  que  ese  mismo  espiritu 
de  cordialidad  que  ha  venido  privando  en  las  numerosas  conferencias 
ya  efectuadas,  recomienda  e indica  la  conveniencia  y la  necesidad  de 
someter  este  asunto  a un  Tribunal  Intemacional  imparcial,  a fin  de 
que  las  diferencias  que  de  el  se  derivan  sean  determinadas  una  vez  por 
todas  y concluyan  de  manera  justa  y equitativa.  Para  llegar  a este 
deseado  fin,  y de  acuerdo  con  los  principios  arriba  apuntados; 

Queda  convenido  entre  el  Doctor  Francisco  Gonzalez  Guinan,  Minis- 
tro  de  Relaciones  Exteriores  de  los  Estados  Unidos  de  Venezuela,  y 
William  I.  Buchanan,  Alto  Comisionado,  Representante  del  Presidente 
de  los  Estados  Unidos  de  America,  debidamente  autorizados  a este 
efecto  por  sus  respectivos  Gobiernos,  que  el  asunto  de  los  Estados 
Unidos  de  America  por  parte  de  la  Orinoco  Corporation  y de  sus 
causantes.  The  Manoa  Company  Limited,  The  Orinoco  Company  y 
The  Orinoco  Company  Limited,  sea  sometido  al  Tribunal  Arbitral 
creado  por  este  Protocolo. 

Dicho  Tribunal  Arbitral  examinara  y decidira: 

1.  Si  el  fallo  del  Superarbitro  Barge  del  12  de  abril  de  1904,  bajo 
los  preceptos  de  derecho  intemacional,  no  esta  viciado  de  nulidad  y 
conserva  el  caracter  de  concluyente  en  el  caso  de  las  causantes  de  la 
Compania  reclamante  contra  Venezuela. 

2.  Si  el  Tribunal  Arbitral  sentencia  que  debe  considerarse  dicho 
fallo  como  concluyente,  decidira  entonces,  que  efecto  tenia  dicho  fallo 
con  respecto  a la  subsistencia  del  contrato  Fitzgerald  en  aquella  fecha, 
y con  respecto  a los  derechos  de  la  Compania  reclamante  6 los  de  sus 
causantes  en  dicho  contrato. 

3.  Si  decide  que  el  fallo  de  dicho  Superarbitro  Barge  no  debe 


512 


ORIGINAL  TEXTS 


considerarse  concluyente,  dicho  Tribunal  Arbitral  examinara  en  su 
fondo  y fallara  sobre  las  cuestiones  sometidas  a dicho  Superarbitro 
por  las  causantes  de  la  Compania  reclamante. 

4.  El  Tribunal  Arbitral  examinara,  considerara  y decidira  si  ha 
habido  injusticia  notoria  contra  la  Compania  reclamante,  6 sus  causan- 
tes, respecto  del  contrato  Fitzgerald,  por  el  fallo  de  la  Corte  Federal 
y de  Casacion,  librado  el  18  de  marzo  de  1908  en  el  juicio  seguido 
por  el  Gobiemo  de  Venezuela  contra  las  causantes  de  la  Compania 
reclamante,  6 por  alguno  de  los  actos  de  cualquiera  de  las  autoridades 
del  Gobierno  de  Venezuela. 

Si  el  Tribunal  Arbitral  decide  que  ha  habido  tal  injusticia,  queda 
facultado  para  examinar  el  asunto  de  la  Compania  reclamante  y de  sus 
causantes  contra  el  Gobierno  de  Venezuela  en  su  fondo,  y para  pro- 
nunciar  fallo  definitivo  respecto  de  los  derechos  y las  obligaciones  de 
las  partes,  fijando  los  dahos  y perjuicios  que  en  su  alto  criterio  crea 
justos  y equitativos. 

En  todo  caso  el  Tribunal  Arbitral  decidira: 

(a) .  Que  efecto,  si  alguno,  ha  causado  y tiene  dicho  fallo  de  la 
Corte  Federal  y de  Casacion,  del  18  de  marzo  de  1908,  en  todo  lo 
referente  a los  derechos  de  la  Compania  reclamante  como  cesionaria 
del  contrato  Fitzgerald ; 

(b) .  Si  dicho  contrato  Fitzgerald  esta  vigente ; y 

(c) .  Si  declara  que  dicho  contrato  esta  vigente,  cuales  son,  entonces, 
los  derechos  y las  obligaciones  de  la  Compania  reclamante  por  una 
parte,  y del  Gobierno  de  Venezuela  por  la  otra. 

ArtIculo  3 

El  Doctor  Francisco  Gonzalez  Guinan,  Ministro  de  Relaciones  Ex- 
teriores  de  los  Estados  Unidos  de  Venezuela,  y William  I.  Buchanan, 
Alto  Comisionado,  Representante  del  Presidente  de  los  Estados  Uni- 
dos de  America,  han  tratado  cuidadosamente,  en  las  conferencias  que 
han  celebrado,  el  asunto  de  los  Estados  Unidos  de  America,  por  parte 
de  la  United  States  and  Venezuela  Company  contra  los  Estados  Uni- 
dos de  Venezuela,  tambien  conocido  como  asunto  Crichfield,  y obser- 
van  que  aunque  los  puntos  que  contienen  differen  en  muchos  respectos 
de  los  tratados  con  respecto  a las  reclamaciones  que  han  sido  conside- 
radas,  las  mismas  opiniones  radicalmente  opuestas  prevalecen  por 
parte  de  ambos  Gobiernos. 

A fin,  pues,  de  que  ningun  asunto  quede  pendiente  que  no  tienda  a 
robustecer  la  buena  inteligencia  y amistad  que  existen  entre  los  dos 
Gobiernos,  sus  Representantes  arriba  nombrados,  el  Doctor  Francisco 
Gonzalez  Guinan  y William  I.  Buchanan,  convienen  por  el  presente 
que  dicho  asunto  de  los  Estados  Unidos  de  America,  por  parte  de  la 
United  States  and  Venezuela  Company  contra  los  Estados  Unidos  de 
Venezuela,  sea  sometido  al  Tribunal  Arbitral  creado  por  este  Proto- 
colo,  y ademas  que  dicho  Tribunal  queda  facultado  para  examinar, 
oir,  considerar,  determinar  y fallar  dicho  asunto  en  su  fondo  en  jus- 
ticia  y equidad. 


THE  ORINOCO  STEAMSHIP  COMPANY  CASE 


513 


Articulo  4 

Los  Estados  Unidos  de  Venezuela  y los  Estados  Unidos  de  Ame- 
rica, habiendo  en  la  Segunda  Conferencia  de  la  Paz  efectuada  en  La 
Haya  en  1907,  aceptado  y reconocido  la  Corte  Permanente  de  La 
Haya,  se  conviene  que  todos  los  casos  mencionados  en  ios  articulos 
I,  II  y III  de  este  Protocol,  es  decir,  el  de  la  Orinoco  Steamship  Com- 
pany, el  de  la  Orinoco  Corporation  y de  sus  causantes,  y el  de  la 
United  States  and  Venezuela  Company,  se  pongan  bajo  la  jurisdic- 
cion  de  un  Tribunal  Arbitral  compuesto  de  tres  Arbitros  escogidos  de 
la  Corte  Permanente  de  La  Haya  ya  citada. 

No  formara  parte  de  este  Tribunal  Arbitral  ninguno  de  los  miem- 
bros  de  dicha  Corte  que  sea  ciudadano  de  los  Estados  Unidos  de  Vene- 
zuela 6 de  los  Estados  Unidos  de  America,  y ningpin  miembro  de  dicha 
Corte  podra  ser  abogado  ante  dicho  Tribunal  por  una  u otra  Nacion. 

Este  Tribunal  Arbitral  tendra  su  asiento  en  La  Haya. 

Articulo  5 

Dicho  Tribunal  Arbitral  en  cada  caso  que  se  le  someta  determinara 
decidira  y fallara  de  acuerdo  con  la  justicia  y la  equidad.  Sus  de- 
cisiones  seran  en  cada  caso  aceptadas  y apoyadas  por  los  Estados 
Unidos  de  Venezuela  y por  los  Estados  Unidos  de  America  como  defi- 
nitivas  y concluyentes. 

Articulo  6 

En  la  presentacion  de  los  casos  al  Tribunal  Arbitral  pueden  ambas 
partes  hacer  uso  de  los  idiomas  frances,  espanol  6 ingles. 

Articulo  7 

Dentro  de  ocho  meses,  contados  desde  la  fecha  de  este  Protocolo, 
cada  una  de  las  partes  presentara  a la  otra  y a cada  uno  de  los  miem- 
bros  del  Tribunal  Arbitral  dos  ejemplares  impresos  de  su  alegato  con 
los  documentos  y pruebas  en  que  se  apoye,  junto  con  el  testimonio  de 
sus  testigos  respectivos. 

Dentro  de  un  plazo  adicional  de  cuatro  meses,  cualquiera  de  las 
partes  puede,  de  la  misma  manera,  presentar  contra-alegato  con  docu- 
mentos, pruebas  y declaraciones  adicionales  en  contestacion  al  alegato, 
documentos,  pruebas  y declaraciones  de  la  otra  parte. 

Dentro  de  sesenta  dias  contados  desde  la  expiracion  del  plazo 
senalado  para  entregar  los  contra-alegatos,  cada  Gobiemo  puede,  por 
medio  de  su  Representante,  hacer  sus  argumentos  ante  el  Tribunal 
Arbitral,  tanto  verbalmente  como  por  escrito,  y cada  uno  entregara 
al  otro  copias  de  cualesquiera  argumentos  asi  hechos  por  escrito,  y 
cada  parte  tendra  derecho  a contestar  por  escrito,  siempre  que  tal 
contestacion  sea  sometida  dentro  de  los  sesenta  dias  ultimamente 
citados. 


514 


ORIGINAL  TEXTS 


Articulo  8 

Todos  los  archives  publicos  y documentos  bajo  el  control  6 direc- 
cion  de  uno  u otro  Gobiemo  6 en  su  posesion,  relativos  a los  asuntos 
en  litigio,  seran  accesibles  al  otro  y,  previa  solicitud,  se  le  daran  las 
copias  autenticadas  de  ellos.  Los  documentos  que  cada  parte  aduzca 
en  sus  pruebas  deberan  estar  autenticados  por  el  respectivo  Ministro 
de  Relaciones  Exteriores. 

Articulo  9 

Todas  las  adjudicaciones  pecuniarias  que  haga  el  Tribunal  Arbitral 
en  los  dichos  casos  seran  en  moneda  de  oro  de  los  Estados  Unidos  de 
America,  6 su  equivalente  en  moneda  venezolana,  debiendo  el  Tribunal 
Arbitral  fijar  el  tiempo  de  los  pagos,  previa  consulta  con  los  Repre- 
sentantes  de  los  dos  Raises. 


Articulo  10 

Queda  convenido  que,  dentro  de  seis  meses  a contar  desde  la  fecha 
de  este  Protocolo,  el  Gobierno  de  los  Estados  Unidos  de  Venezuela  y 
cl  de  los  Estados  Unidos  de  America  se  notificaran  mutuamente,  asi 
como  tambien  notificaran  a la  Oficina  de  la  Corte  Permanente  de  La 
Haya,  el  nombre  del  Arbitro  que  escoja  de  entre  los  miembros  de  la 
Corte  Permanente  de  Arbitraje. 

Dentro  de  los  sesenta  dias  sig^ientes,  los  Arbitros  arriba  menciona- 
dos  se  reuniran  en  La  Haya  y procederan  a escoger  el  Tercer  Arbitro 
de  acuerdo  con  las  previsiones  del  articulo  cuarenta  y cinco  de  la 
Convencion  de  La  Haya  para  el  Arreglo  Pacifico  de  los  Conflictos 
Internacionales  arriba  citada. 

Dentro  del  mismo  termino  cada  uno  de  los  dos  Gobiemos  depositara 
en  dicha  Oficina  la  suma  de  quince  mil  francos  por  cuenta  de  los  gas- 
tos  del  arbitramento  previsto  por  este  Protocolo,  y de  cuando  en  cuando 
y de  la  misma  manera  seran  depositadas  las  demas  cantidades  necesa- 
rias  para  cubrir  dichos  gustos. 

El  Tribunal  Arbitral  se  reunira  en  La  Haya  doce  meses  despues  de 
la  fecha  de  este  Protocolo  para  empezar  sus  deliberaciones  y oir  los 
argumentos  a el  sometidos.  Dentro  de  sesenta  dias  despues  de  cerra- 
das  las  audiencias  seran  librados  sus  fallos. 

ArtIculo  11 

Con  excepcion  de  lo  convenido  en  este  Protocolo,  el  procedimiento 
arbitral  se  conformara  a las  previsiones  de  la  Convencion  para  el 
Arreglo  Pacifico  de  los  Conflictos  Internacionales,  de  la  cual  ambas 
partes  son  signatarias,  firmada  en  La  Haya  el  18  de  octubre  de  1907, 
y especialmente  a las  previsiones  de  su  capitulo  tercero. 

ArtIculo  12 

Queda  entendido  y pactado  que  nada  de  lo  expuesto  en  este  Proto- 
colo sera  impedimento  para  que  dentro  del  termino  de  cinco  meses. 


THE  ORINOCO  STEAMSHIP  COMPANY  CASE 


515 


a contar  de  la  fecha  de  este  Protocolo,  los  Estados  Unidos  de  Vene- 
zuela puedan  llegar  a un  arreglo  amistoso  con  las  dos  6 cada  una  de 
las  Companias  reclamantes  a que  refieren  los  articulos  II  y III,  siempre 
que,  en  cada  caso  en  que  se  llegare  a un  arreglo  la  respectiva  Compania 
haya  obtenido  previamente  el  consentimiento  del  Gobiemo  de  los 
Estados  Unidos  de  America. 

Los  signatarios,  el  Doctor  Francisco  Gonzalez  Guinan  y William 
I.  Buchanan,  con  el  caracter  que  cada  uno  inviste,  de  esta  manera,  dan 
por  terminadas  sus  conferencias  con  respecto  a las  diferencias  entre 
los  Estados  Unidos  de  Venezuela  y los  Estados  Unidos  de  America 
y firman  dos  ejemplares  de  este  Protocolo  de  un  mismo  tenor  y a un 
solo  efecto  en  cada  uno  de  los  idiomas  espanol  e ingles,  en  Caracas  a 
los  trece  dias  del  mes  de  febrero  del  ano  de  mil  novecientos  nueve. 

(L.  S.)  F.  Gonzalez  Guinan 
(L.  S.)  William  I.  Buchanan 


THE  SAVARKAR  CASE 


Azvard  of  the  Tribunal,  February  2^,  igiF 

Considerant  que,  par  un  Compromis  en  date  du  25  octobre  1910,  le 
Gouvemement  de  la  Republique  Frangaise  et  le  Gouvemement  de  Sa 
Majeste  Britannique  se  sont  mis  d’accord  a I’effet  de  soumettre  a 
I’arbitrage,  d’une  part,  les  questions  de  fait  et  de  droit  soulevees  par 
I’arrestation  et  la  reintegration,  a bord  du  paquebot  “Morea,”  le  8 
juillet  1910,  a Marseille,  du  sujet  britannique  (British  Indian) 
Savarkar,  evade  de  ce  batiment  ou  il  etait  detenu ; d’autre  part,  la 
reclamation  du  Gouvemement  de  la  Republique  Frangaise  tendant  a la 
restitution  de  Savarkar; 

que  le  Tribunal  Arbitral  a ete  charge  de  decider  la  question  suivante: 
Vinayak  Damodar  Savarkar  doit-il,  conformement  aux  regies  du  droit 
international,  etre  ou  non  restitue  par  le  Gouvemement  de  Sa  Majeste 
Britannique  au  Gouvemement  de  la  Republique  Frangaise? 

Considerant  qu’en  execution  de  ce  Compromis,  les  deux  Gouverne- 
ments  ont  designe  respectivement  comme  Arbitres: 

Son  Excellence  Monsieur  Beemaert,  Ministre  d’Etat,  Membre  de 
la  Chambre  Beige  des  Representants,  etc..  President ; 

Le  Tres  Honorable  Comte  de  Desart,  ancien  Procureur-General 
de  Sa  Majeste  Britannique ; 

Monsieur  Louis  Renault,  Professeur  a TUniversite  de  Paris,  Ministre 
Plenipotentiaire,  Jurisconsulte  du  Departement  des  Affaires  Etran- 
geres; 

Monsieur  G.  Gram,  ancien  Ministre  d’Etat  de  Norvege,  Gouvemeur 
de  Province ; 

Son  Excellence  Monsieur  le  Jonkheer  A.  F.  de  Savornin  Lohman, 
Ministre  d’Etat,  Membro  de  la  Seconde  Chambre  des  Etats-Generaux 
des  Pays-Bas; 

Considerant  que  les  deux  Gouvernements  ont  respectivement  de- 
signe comme  Agents, 

Le  Gouvemement  de  la  Republique  Frangaise: 

Monsieur  Andre  Weiss,  Jurisconsulte  adjoint  du  Departement  des 
Affaires  Etrangeres  de  la  Republique  Frangaise,  Professeur  a la 
Faculte  de  droit  de  Paris; 

Le  Gouvemement  de  Sa  Majeste  Britannique: 

Monsieur  Eyre  Crowe,  Conseiller  d’Ambassade,  Chef  de  Section  au 
Departement  des  Affaires  Etrangeres  de  Sa  Majeste  Britannique. 

Considerant  que,  conformement  aux  dispositions  du  Compromis,  les 
Memoires,  Contre-Memoires  et  Repliques  ont  ete  dument  echanges 
entre  les  Parties  et  communiques  aux  Arbitres. 


‘Official  report,  p.  SO. 


THE  SAVARKAR  CASE 


517 


Considerant  que  le  Tribunal  s’est  reuni  a La  Haye  le  1 fevrier  1911, 
Attendu,  en  ce  qui  concerne  les  fails  qui  ont  donne  lieu  au  differend 
entre  les  deux  Gouvernements,  qu’il  est  etabli  que,  par  une  lettre  du 
29  juin  1910,  le  Chef  de  la  Police  Metropolitaine  a Londres  a fait 
savoir  au  Directeur  de  la  Surete  generale  a Paris  que  le  sujet  Britan- 
nique  Indien  (British  Indian)  Vinayak  Damodar  Savarkar  serait 
envoye  dans  ITnde  a I’effet  d’y  etre  poursuivi  pour  une  affaire  d’as- 
sassinat,  etc.  (for  abetment  of  murder,  etc.),  et  qu’il  serait  a bord  du 
navire  “Morea,”  faisant  escale  a Marseille  le  7 ou  le  8 juillet. 

Attendu  qu’a  la  suite  de  cette  lettre,  le  Ministere  de  I’lnterieur  a,  par 
un  telegramme  du  4 juillet  1910,  avert!  le  Prefet  des  Bouches-du- 
Rhone  que  la  police  britannique  venait  d’envoyer  dans  I’Inde  Savarkar 
a bord  du  vap>eur  “Morea” ; que  ce  telegramme  mentionne  que  “quel- 
ques  revolutionnaires  hindous,  actuellement  sur  le  Continent,  pour- 
raient  profiter  de  cette  occasion  pour  faciliter  I’evasion  de  cet  etranger,” 
et  que  le  Prefet  est  prie  “de  vouloir  bien  prendre  les  dispositions 
necessaires  pour  eviter  toute  tentative  de  ce  genre.” 

Attendu  que  le  Directeur  de  la  Surete  generale  a,  de  son  cote,  re- 
pondu,  le  9 juillet  1910,  a la  lettre  du  Chef  de  la  Police  a Londres, 
en  lui  faisant  connaitre  qu’il  a “donne  les  instructions  necessaires,  en 
vue  d’eviter  tout  incident  a I’occasion  du  passage  a Marseille  du  nomme 
Vinayak  Damodar  Savarkar,  embarque  a bord  du  vapeur  Morea.” 
Attendu  que,  le  7 juillet,  le  “Morea”  arriva  a Marseille;  que,  le 
lendemain  entre  6 et  7 heures  du  matin,  Savarkar,  ayant  reussi  a 
s’echapper,  a gagne  la  terre  a la  nage  et  s’est  mis  a courir;  qu’il  fut 
arrete  par  un  brigadier  de  la  gendarmerie  maritime  frangais,  et  ramene 
a bord  du  navire;  que  trois  personnes  descendues  du  navire  ont  prete 
assistance  au  brigadier  pour  reconduire  le  fugitif  a bord;  que,  le  9 
juillet,  le  “Morea”  quitta  Marseille  emmenant  ce  dernier. 

Attendu  que  des  declarations  que  le  brigadier  frangais  a faites  de- 
vant  la  police  de  Marseille,  il  resulte: 

qu’il  a vu  le  fugitif  presque  nu  sortir  par  un  hublot  du  vapeur  se 
jeter  a la  mer  et  gagner  le  quai  a la  nage; 

qu’au  meme  instant,  des  personnes  du  bord  se  sont  precipitees,  en 
criant  et  en  gesticulant,  sur  la  passerrelle  conduisant  a terre  pour  se 
mettre  a la  poursuite  de  cet  homme; 

que,  d’autre  part,  de  nombreuses  personnes  se  trouvant  sur  le  quai 
se  mirent  a crier,  “Arretez-le” ; 

que  le  brigadier  s’elanga  aussitot  a la  poursuite  du  fugitif,  et,  le 
rejoignant  apres  un  parcours  de  cinq  cents  metres  environ,  I’arreta. 

Attendu  que  le  brigadier  declare  qu’il  ignorait  absolument  a qui  il 
avait  eu  affaire,  qu’il  a cru  simplement  que  I’individu  qui  se  sauvait, 
poursuivi  par  la  clameur  publique,  etait  un  homme  de  I’equipage  ayant 
peut-etre  commis  un  debt  a bord. 

Attendu,  quant  a I’assistance  que  lui  ont  pretee  un  homme  de 
I’equipage  et  deux  agents  de  la  police  indienne,  qu’il  resulte  des  expli- 
cations fournies  a ce  sujet,  qu’ils  sont  survenus  apres  I’arrestation  de 
Savarkar  et  que  leur  intervention  n’a  eu  qu’un  caractere  secondaire; 


518 


ORIGINAL  TEXTS 


que,  le  brigadier  ayant  pris  Savarkar  par  un  bras  pour  le  ramener 
vers  le  navire,  le  prisonnier  le  suivit  docilement  et  que  le  brigadier 
n’a  pas  cesse  de  le  tenir,  assiste  des  personnes  susmentionnees,  jusqu’a 
la  coupee  du  navire; 

qu’il  a declare,  du  reste,  qu’il  ne  connaissait  pas  la  langue  anglaise; 

qu’a  juger  de  ce  qui  a ete  relate,  tout  I’incident  n’a  dure  que  quel- 
ques  minutes. 

Attendu  qu’il  est  avere  que  le  brigadier  qui  operait  I’arrestation 
n’ignorait  pas  la  presence  de  Savarkar  a bord  du  navire  et  qu’il  avait 
eu,  comme  tous  les  agents  et  gendarmes  franqais,  pour  consigne  d’em- 
pecher  de  monter  a bord  tout  Hindou  qui  ne  serait  pas  porteur  d’un 
billet  de  passage. 

Attendu  que  les  circonstances  expliquent,  du  reste,  que  les  personnes 
chargees  a bord  de  surveiller  Savarkar  aient  cru  pouvoir  compter  sur 
I’assistance  des  agents  frangais. 

Attendu  qu’il  est  etabli  qu’un  Commissaire  de  la  police  frangaise  s’est 
presente  a bord  du  navire,  peu  de  temps  apres  son  arrivee  au  port,  et 
s’est  mis,  d’apres  I’ordre  du  Prefet,  a la  disposition  du  Commandant 
pour  la  surveillance  a exercer; 

que  ce  Commissaire  a ete,  en  consequence,  mis  en  relation  avec 
I’officier  de  police  britannique  charge,  avec  des  agents,  de  la  garde  du 
prisonnier ; 

que  le  Prefet  de  Marseille,  comme  il  resulte  d’un  telegramme  du  13 
juillet  1910  au  Ministre  de  I’lnterieur,  declare  avoir  agi  a cette  occasion 
conformement  aux  instructions  donnees  par  la  Surete  generale  prescri- 
vant  de  prendre  les  dispositions  n^essaires  pour  empecher  I’evasion 
de  Savarkar. 

Attendu  que,  d’apres  ce  qui  precede,  il  est  manifeste  qu’il  ne  s’agit 
pas  ici  d’un  cas  ou  Ton  aurait  eu  recours  a des  manoeuvres  fraudu- 
leuses  ou  a des  actes  de  violence  pour  se  mettre  en  possession  d’une 
personne  refugiee  sur  un  territoire  etranger  et  qu’il  n’y  a eu,  dans  les 
faits  de  I’arrestation,  de  la  livraison  et  de  la  conduite  de  Savarkar 
dans  I’lnde,  rien  de  nature  a porter  atteinte  a la  souverainete  de  la 
France;  que  tous  ceux  qui  ont  pris  part  a I’incident  ont  ete  certaine- 
ment  de  bonne  foi  et  n’ont  nullement  cru  s’ecarter  de  la  l%alite. 

Attendu  que,  dans  les  circonstances  ci-dessus  relatees,  la  conduite 
du  brigadier  n’ayant  pas  ete  desavouee  par  ses  chefs  avant  le  9 juillet 
au  matin,  c’est-a-dire  avant  le  depart  du  “Morea”  de  Marseille,  les 
agents  britanniques  ont  pu  naturellement  croire  que  le  brigadier  avait 
agi  en  conformite  de  ses  instructions  ou  que  sa  conduite  avait  ete 
approuvee. 

Attendu  qu’en  admettant  qu’une  irregularite  ait  ete  commise  par 
I’arrestation  et  la  remise  de  Savarkar  aux  agent  britanniques,  il  n’existe 
pas,  en  droit  international,  de  regie  en  vertu  de  laquelle  la  Puissance 
qui  a,  dans  des  conditions  telles  que  celles  qui  ont  ete  indiquees,  un 
prisonnier  en  son  pouvoir,  devrait  le  rendre  a raison  d’une  faute  com- 
mise par  I’agent  etranger  qui  le  lui  a*livre. 


THE  SAVARKAR  CASE 


519 


Par  ces  Motifs: 

Le  Tribunal  Arbitral  decide  que  le  Gouvemement  de  Sa  Majeste 
Britannique  n’est  pas  tenu  de  restituer  le  nomme  Vinayak  Damodar 
Savarkar  au  Gouvemement  de  la  Republique  frangaise. 

Fait  a La  Haye,  dans  I’Hotel  de  la  Cour  Permanente  d’ Arbitrage, 
le  24  fevrier  1911. 

Le  President:  A.  Beernaert 
Le  Secretaire  general:  Michiels  van  Verduynen 


Agreement  for  Arbitration,  October  2^,  igio^ 

Le  Gouvemement  de  la  Republique  Frangaise  et  le  Gouvemement  de 
Sa  Majeste  Britannique  s’etant  mis  d’accord,  par  un  echange  de  notes 
en  date  des  4 et  5 octobre  1910,  a I’effet  de  soumettre  a Tarbitrage, 
d’une  part,  les  questions  de  fait  et  de  droit  soulevees  par  Tarrestation 
et  la  reintegration,  a bord  du  paquebot  Morea,  le  8 Juillet  1910,  a 
Marseille,  de  ITndien  Vinayak  Damodar  Savarkar,  evade  de  ce  bati- 
ment,  ou  il  etait  detenu ; d’autre  part,  la  reclamation  du  Gouvemement 
de  la  Republique  tendant  a la  restitution  de  Savarkar ; 

Les  soussignes,  dument  autorises  a cet  eifet,  sont  convenus  du  Com- 
promis  suivant: 

Article  Premier 

Un  Tribunal  Arbitral,  compose  comme  il  est  dit  ci-apres,  sera  charge 
de  decider  la  question  suivante : 

Vinayak  Damodar  Savarkar  doit-il,  conformement  aux  regies  du 
droit  international,  etre  ou  non  restitue  par  le  Gouvemement  de  Sa 
Majeste  Britannique  au  Gouvemement  de  la  Republique  Frangaise? 

Art.  2 

Le  Tribunal  Arbitral  sera  compose  de  cinq  Arbitres  pris  parmi  les 
membres  de  la  Cour  permanente  de  La  Haye.  Les  deux  Parties  con- 
tractantes  se  .mettront  d’accord  sur  la  composition  du  Tribunal. 
Chacune  d’elles  pourra  designer  comme  Arbitre  un  de  ses  nationaux. 

Art.  3 

Le  6 decembre  1910,  chacune  des  Hautes  Parties  contractantes  remet- 
tra,  au  Bureau  de  la  Cour  permanente,  quinze  exemplaires  de  son 
memoire,  avec  les  copies  certifiees  conformes  de  toutes  pieces  et  docu- 
ments qu’elle  compte  invoquer  dans  la  cause.  Le  Bureau  en  assurera 
sans  retard  la  transmission  aux  Arbitres  et  aux  Parties : savoir,  de 
deux  exemplaires  pour  chaque  Arbitre,  de  trois  exemplaires  pour 
chaque  Partie.  Deux  exemplaires  resteront  dans  les  archives  du 
Bureau. 


^OflScial  report,  p.  5. 


520 


ORIGINAL  TEXTS 


Le  17  janvier  1911,  les  Hautes  Parties  contractantes  deposeront  dans 
la  meme  forme  leurs  contre-memoires,  avec  pi^es  a Tappui. 

Ces  contre-memoires  pourront  donner  lieu  a des  repliques,  qui 
devront  etre  presentees  dans  un  delai  de  quinze  jours  apres  la  remise 
des  contre-memoires. 

Les  delais  fixes  par  le  present  Arrangement  pour  la  remise  des 
memoires,  contre-memoires  et  repliques  pourront  etre  etendus  par  une 
entente  mutuelle  des  Hautes  Parties  contractantes. 

Art.  4 

Le  Tribunal  se  reunira  a La  Haye  le  14  fevrier  1911. 

Chaque  Partie  sera  representee  par  un  Agent,  avec  mission  de  servir 
d’intermediaire  entre  elle  et  le  Tribunal. 

Le  Tribunal  Arbitral  pourra,  s’il  I’estime  necessaire,  demander  a 
Tun  ou  a Tautre  des  Agents  de  lui  fournir  des  explications  orales  ou 
ecrites,  auxquelles  I’Agent  de  la  Partie  adverse  aura  le  droit  de 
repondre. 

II  aura  aussi  la  faculte  d’ordonner  la  comparution  de  temoins. 

Art.  5 

Les  Parties  peuvent  faire  usage  de  la  langue  franqaise  ou  de  la 
langue  anglaise.  Les  membres  du  Tribunal  pourront  se  servir,  a leur 
choix,  de  la  langue  frangaise  ou  de  la  langue  anglaise.  Les  decisions  du 
Tribunal  seront  redigees  dans  les  deux  langues. 

Art.  6 

La  decision  du  Tribunal  devra  etre  rendue  dans  le  plus  bref  delai 
possible,  et  dans  tons  les  cas,  dans  les  trente  jours  qui  suivront  la  date 
de  la  reunion  a La  Haye  ou  celle  de  la  remise  des  explications  ecrites 
qui  lui  auraient  ete  fournies  a sa  requete.  Ce  delai  pourrait,  cependant, 
etre  prolonge  a la  demande  du  Tribunal  si  les  deux  Hautes  Parties 
contractantes  y consentaient. 

Fait  a Londres,  en  double  exemplaire,  le  25  octobre  1910. 

(L.  S.)  Signer  Paul  Gambon 
(L.  S.)  Signer  E.  Grey 


Supplementary  Note  of  October  2c,,  1910,  to  the  Agreement  for  Arbi- 
tration, Addressed  by  His  Excellency  the  Ambassador  of  the  French 
Republic  at  London  to  His  Excellency  the  Principal  Secretary  of 
State  of  His  Britannic  Majesty  in  the  Department  of  Foreign  Affair^ 

^5  Octobre  1910. 

Monsieur  le  MiNiSTREr  J’ai  I’honneur  d’accuser  reception  a 
Votre  Excellence  de  sa  note  de  ce  jour  relative  a I’arrangement  que 
nous  avons  signe  aujourd’hui  en  vue  de  soumettre  a I’arbitrage  cer- 


‘Official  report,  p.  9. 


THE  SAVARKAR  CASE 


521 


taines  questions  concernant  I’arrestation  et  la  restitution  de  Vinayak 
Damodar  Savarkar,  a Marseille,  le  8 juillet  dernier.  Je  suis  autorise 
a constater,  avec  Votre  Excellence,  I’entente  d’apres  laquelle  toutes  les 
questions  qui  pourraient  s’elever  au  cours  de  cet  arbitrage,  et  qui  ne 
seraient  pas  prevues  par  le  susdit  arrangement,  seront  reglees  con- 
formement  aux  stipulations  de  la  Convention,  pour  le  reglement  paci- 
fique  des  conflicts  internationaux,  signee  a la  Haye  le  18  octobre  1907. 

II  est  egalement  entendu  que  chaque  partie  supportera  ses  propres 
frais  et  une  part  egale  des  depenses  du  Tribunal. 

Veuillez  agreer,  etc. 


Signe : Paul  Cam  bon 


THE  CANEVARO  CASE 


Award  of  the  Tribunal,  May  5,  igi2^ 

Considerant  que,  par  un  Compromis  en  date  du  25  avril  1910,  le 
Gouvemement  Italien  et  le  Gouvemement  du  Perou  se  sont  mis 
d’accord  a I’effet  de  soumettre  a I’arbitrage  les  questions  suivantes : 

“Le  Gouvemement  du  Perou  doit-il  payer  en  espies  ou  bien  d’apres 
les  dispositions  de  la  loi  pemvienne  sur  la  dette  interieure  du  12  juin 
1889  les  lettres  a ordre  (cambtali,  libramientos)  dont  sont  actuellement 
possesseurs  les  freres  Napoleon,  Carlo  et  Raphael  Canevaro,  qui  furent 
tirees  par  le  Gouvemement  du  Perou  a Tordre  de  la  maison  Jose  Cane- 
varo e hijos  pour  le  montant  de  43,140  livres  sterling  plus  les  interets 
legaux  du  montant  susdit?” 

“Les  freres  Canevaro  ont-ils  le  droit  d’exiger  le  total  de  la  somme 
reclamee  ?” 

“Le  comte  Raphael  Canevaro  a-t-il  le  droit  d’etre  considere  comme 
reclamant  italien?” 

Considerant  qu’en  ex^ution  de  ce  Compromis,  ont  ete  designes 
comme  Arbitres: 

Monsieur  Louis  Renault,  Ministre  plenipotentiairie,  Membre  de 
rinstitut,  Professeur  a la  Faculte  de  droit  de  I’Universite  de  Paris  et  a 
I’Ecole  des  sciences  politiques,  Jurisconsulte  du  Ministere  des  Affaires 
Etrangeres,  President; 

Monsieur  Guido  Fusinato,  Docteur  en  droit,  ancien  Ministre  de 
rinstmction  publique,  Professeur  honoraire  de  droit  international  a 
rUniversite  de  Turin,  Depute,  Conseiller  d’Etat; 

Son  Excellence  Monsieur  Manuel  Alvarez  Calderon,  Docteur  en 
droit,  Professeur  a I’Universite  de  Lima,  Envoye  extraordinaire  et 
Ministre  plenipotentiaire  du  Perou  a Bmxelles  et  a Berne. 

Considerant  que  les  deux  Gouvemements  ont  respectivement  designe 
comme  Conseils : 

Le  Gouvemement  Royal  Italien : 

Monsieur  le  Professeur  Vittorio  Scialoja,  Senateur  du  Royaume 
d’ltalie  et,  comme  conseil  adjoint,  le  Comte  Giuseppe  Francesco  Cane- 
varo, Docteur  en  droit, 

Le  Gouvemement  Peruvien ; 

Monsieur  Manuel  Maria  Mesones,  Docteur  en  droit,  Avocat. 

Considerant  que,  conformement  aux  dispositions  du  Compromis,  les 
Memoires  et  Contre-memoires  ont  ete  dument  echanges  entre  les 
Parties  et  communiques  aux  Arbitres  ; 

Considerant  que  le  Tribunal  s’est  reuni  a La  Haye  le  20  avril  1912. 

Considerant  que,  pour  la  simplification  de  I’expose  que  suivra,  il 


* Official  report,  p.  14. 


THE  CANEVARO  CASE 


523 


vaut  mieux  statuer  d’abord  sur  la  troisieme  question  posee  par  le 
Compromis,  c’est-a-dire  sur  la  qualite  de  Raphael  Canevaro ; 

Considerant  que,  d’apres  la  legislation  peruvienne  (Art.  34  de  la 
Constitution),  Raphael  Canevaro  est  Peruvien  de  naissance  comme 
etant  ne  sur  le  territoire  peruvien, 

Que,  d’autre  part,  la  legislation  italienne  (Art.  4 du  Code  civil)  lui 
attribue  la  nationalite  italienne  comme  etant  ne  d’un  pere  italien ; 

Considerant  qu’en  fait,  Raphael  Canevaro  c’est,  a plusieurs  reprises, 
comporte  comme  citoyen  peruvien,  soit  en  posant  sa  candidature  au 
Senat  ou  ne  sont  admis  que  les  citoyens  peruviens  et  ou  il  est  alle 
defendre  son  election,  soit  surtout  en  acceptant  les  fonctions  de  Consul 
general  des  Pays-Bas,  apres  avoir  sollicite  I’autorisation  du  Gouverne- 
ment,  puis  du  Congres  peruvien ; 

Considerant  que,  dans  ces  circonstances,  quelle  que  puisse  etre  en 
Italie,  au  point  de  vue  de  la  nationalite,  la  condition  de  Raphael  Cane- 
varo, le  Gouvernement  du  Perou  a le  droit  de  le  considerer  comme 
citoyen  peruvien  et  de  lui  denier  la  qualite  de  reclamant  italien. 

Considerant  que  la  cr&nce  qui  a donne  lieu  a la  reclamation  soumise 
au  Tribunal  resulte  d’un  decret  du  dictateur  Pierola  du  12  decembre 
1880,  en  vertu  duquel  ont  ete  crees,  a la  date  du  23  du  meme  mois,  des 
bons  de  paiement  (libramientos)  a I’ordre  de  la  maison  “Jose  Cane- 
varo e hijos”  pour  une  somme  de  77,000  livres  sterling,  payables  a 
diverses  echeances ; 

Que  ces  bons  n’ont  pas  ete  payes  aux  echeances  fixees,  qui  ont 
coincide  avec  I’occupation  ennemie ; 

Qu’un  acompte  de  35,000  livres  sterling  ayant  ete  paye  a Londres 
en  1885,  il  reste  une  creance  de  43,140  livres  sterling  sur  le  sort  de 
laquelle  il  s’agit  de  statuer; 

Considerant  qu’il  resulte  des  faits  de  la  cause  que  la  maison  de  com- 
merce “Jose  Canevaro  e hijos,”  etablie  a Lima,  a ete  reconstituee  en 
1885  apres  la  mort  de  son  fondateur,  survenue  en  1883 ; 

Qu’elle  a bien  conserve  la  raison  sociale  “Jose  Canevaro  e hijos,”  mais 
qu’en  realite,  comme  le  constate  I’acte  de  liquidation  du  6 fevrier  1905, 
elle  etait  composee  de  Jose  Francisco  et  de  Cesar  Canevaro,  dont  la 
nationalite  peruvienne  n’a  jamais  ete  contestee,  et  de  Raphael  Cane- 
varo, dont  la  meme  nationalite,  aux  termes  de  la  loi  du  Perou,  vient 
d’etre  reconnue  par  le  Tribunal; 

Que  cette  societe,  peruvienne  a un  double  titre  et  par  son  siege  social 
et  par  la  nationalite  de  ses  membres,  a subsiste  jusqu’a  la  mort  de 
Jose  Francisco  Canevaro,  survenue  en  1900; 

Considerant  que  c’est  au  cours  de  I’existence  de  cette  societe  que 
sont  intervenues  les  lois  peruviennes  du  26  octobre  1886,  du  12  juin 
1889  et  du  17  decembre  1898  qui  ont  edicte  les  mesures  les  plus  graves 
en  ce  qui  conceme  les  dettes  de  I’Etat  peruvien,  mesures  qu’a  paru 
necessiter  I’etat  desastreux  auquel  le  Perou  avait  ete  reduit  par  les 
malheurs  de  la  guerre  etrangere  et  de  la  guerre  civile ; 

Considerant  que,  sans  qu’il  y ait  lieu  pour  le  Tribunal  d’apprecier 
en  elles-memes  les  dispositions  des  lois  de  1889  et  de  1898,  certainement 


524 


ORIGINAL  TEXTS 


tres  rigoureuses  pour  les  creanciers  du  Perou,  leurs  dispositions 
s’imposaient  sans  aucun  doute  aux  Peruviens  individuellement  comme 
aux  societes  peruviennes,  qu’il  y a la  un  pur  fait  que  le  Tribunal  n’a 
qu’a  constater. 

Considerant  que,  le  30  septembre  1890,  la  Societe  Canevaro,  par  son 
representant  Giacometti,  s’adressait  au  Senat  pour  obtenir  le  paiement 
des  43,140  livres  sterling  qui  auraient  ete,  suivant  lui,  fournis  pour 
satisfaire  aux  necessites  de  la  guerre ; 

Que,  le  9 avril  1891,  dans  une  lettre  adressee  au  President  du 
Tribunal  des  Comptes,  Giacometti  assignait  une  triple  origine  a la 
creance : un  solde  du  a la  maison  Canevaro  par  le  Gouvernement 
comme  prix  d’armements  achetes  en  Europe  au  temps  de  la  guerre; 
lettres  tirees  par  le  Gouvernement  a la  charge  de  la  consignation  du 
guano  aux  Etats-Unis,  protestees  et  payees  par  Jose  Francisco  Cane- 
varo ; argent  foumi  pour  I’armee  par  le  General  Canevaro ; 

Qu’enfin,  le  1*’'  avril  1891,  le  meme  Giacometti,  s’adressant  encore 
au  President  du  Tribunal  des  Comptes,  invoquait  I’article  14  de  la  loi 
du  12  juin  1889  que,  disait-il,  le  Congres  avait  votee  “animado  del  mas 
patriotico  proposito,”  pour  obtenir  le  reglement  de  la  creance ; 

Considerant  que  le  representant  de  la  maison  Canevaro  avait  d’abord 
assigne  a la  creance  une  origine  manifestement  erronee,  qu’il  ne 
s’agissait  nullement  de  fournitures  ou  d’avances  faites  en  vue  de  la 
guerre  contre  le  Chili,  mais,  comme  il  a ete  reconnu  plus  tard,  unique- 
ment  du  remboursement  de  lettres  de  change  anteri cures  qui,  tirees  par 
le  Gouvernement  peruvien,  avaient  ete  protestees,  puis  acquittees  par  la 
maison  Canevaro; 

Que  c’est  en  presence  de  cette  situation  qu’il  convient  de  se  placer ; 

Considerant  que  la  maison  Canevaro  reconnaissait  bien,  en  1890  et 
en  1891,  qu’elle  etait  soumise  a la  loi  de  1889  sur  la  dette  interieure, 
qu’elle  cherchait  seulement  a se  placer  dans  le  cas  de  profiter  d’une 
disposition  favorable  de  cette  loi  au  lieu  de  subir  le  sort  commun 
des  creanciers ; 

Que  sa  creance  ne  rentre  pas  dans  les  dispositions  de  I’article  14  de 
la  dite  loi  qu’elle  a invoquee,  ainsi  qu’il  a ete  dit  plus  haut ; qu’il  ne 
s’agit  pas,  dans  I’espece,  d’un  depot  rcQU  par  le  Gouvernement,  ni  de 
lettres  de  change  tirees  sur  le  Gouvernement,  acceptees  par  lui  et 
reconnues  legitimes  par  le  Gouvernement  “actuel,”  mais  d’une  operation 
de  comptabilite  n’ayant  pas  pour  but  de  procurer  des  ressources  a I’Etat, 
mais  de  regler  une  dette  anterieure ; 

Que  la  creance  Canevaro  rentre,  au  contraire,  dans  les  termes  tres 
comprehensifs  de  I’article  I",  n“.  4 de  la  loi  qui  mentionnent  les  ordres 
de  paiement  (libramientos) , bons,  cheques,  lettres  et  autres  mandats 
de  paiement  emis  par  les  bureaux  nationaux  jusqu’ en  janvter  i88o; 
qu’on  peut,  a la  verite,  objecter  que  ce  membre  de  phrase  semble  devoir 
laisser  en  dehors  le  creance  Canevaro  qui  est  du  23  decembre  1880; 
mais  qu’il  importe  de  faire  remarquer  que  cette  limitation  quant  a la 
date  avait  pour  but  d’exclure  les  creances  nees  des  actes  du  dictateur 
Pierola,  conformement  a la  loi  de  1886  qui  a declare  nuls  tous  les 


THE  CANEVARO  CASE 


525 


actes  de  ce  dernier ; qu’ainsi,  en  prenant  a la  lettre  la  disposition  dont 
il  s’agit,  la  creance  Canevaro  ne  pourrait  etre  invoquee  a aucun  titre, 
meme  pour  obtenir  la  faible  proportion  admise  par  la  loi  de  1889 ; 

Mais  considerant  que,  d’une  part,  il  resulte  des  circonstances  et  des 
termes  du  Compromis  que  le  Gouvernement  peruvien  reconnait  lui- 
meme  comme  non  applicable  a la  creance  Canevaro  la  nullite  edictee 
par  la  loi  de  1886;  que,  d’autre  part,  la  nullite  du  decret  de  Pierola 
laisserait  subsister  la  creance  anterieure  nee  du  paiement  des  lettres 
de  change ; 

Qu’ainsi,  la  creance  resultant  des  bons  de  1880  delivres  a la  maison 
Canevaro  doit  etre  consideree  comme  rentrant  dans  la  categorie  des 
titres  enumeres  dans  I’article  I®"",  n°.  4,  de  la  loi. 

Considerant  qu’il  a ete  soutenu  d’une  maniere  generale  que  la  dette 
Canevaro  ne  devait  pas  subir  I’application  de  la  loi  de  1889,  qu’elle  ne 
pouvait  etre  consideree  comme  rentrant  dans  la  dette  interieure,  parce 
que  tous  ses  elements  y repugnaient,  le  titre  etant  a ordre,  stipule 
payable  en  livres  sterling,  appartenant  a des  Italiens ; 

Considerant  qu’en  dehors  de  la  n^tionalite  des  personnes,  on  com- 
prend  que  des  mesures  financieres,  prises  dans  I’interieur  d’un  pays, 
n’atteignent  pas  les  actes  intervenus  au  dehors  par  lesquels  le  Gouverne- 
ment a fait  directement  appel  au  credit  etranger;  mais  que  tel  n’est 
pas  le  cas  dans  I’espece : qu’il  s’agit  bien,  dans  les  titres  delivres  en 
decembre  1880,  d’un  reglement  d’ordre  interieur,  de  titres  crees  a 
Lima,  payables  a Lima,  en  compensation  d’un  paiement  fait  volon- 
tairement  dans  I’interet  du  Gouvernement  du  Perou ; 

Que  cela  n’est  pas  infirme  par  les  circonstances  que  les  titres  etaient 
a ordre,  payables  en  livres  sterling,  circonstances  qui  n’empechaient 
pas  la  loi  peruvienne  de  s’appliquer  a des  titres  crees  et  payables  sur  le 
territoire  ou  elle  commandait; 

Que  I’enumeration  de  I’article  1®’’  n°.  4 rappelee  plus  haut  comprend 
des  titres  a ordre  et  que  I’article  5 prevoit  qu’il  peut  y avoir  des  con- 
versions de  monnaies  a faire; 

Qu’enfin  il  a ete  constate  precedemment  que,  lorsque  sont  intervenues 
les  mesures  financieres  qui  motivent  la  reclamation,  la  creance  apparte- 
nait  a une  societe  incontestablement  peruvienne. 

Considerant  que  la  creance  de  1880  appartient  actuellement  aux  trois 
freres  Canevaro  dont  deux  sont  certainement  Italiens ; 

Qu’il  convient  de  se  demander  si  cette  circonstance  rend  inapplicable 
la  loi  de  1889 ; 

Considerant  que  le  Tribunal  n’a  pas  a rechercher  ce  qu’il  faudrait 
decider  si  la  creance  avait  appartenu  a des  Italiens  au  moment  ou 
intervenait  la  loi  qui  reduisait  dans  de  si  grandes  proportions  les  droits 
des  creanciers  du  Perou  et  si  les  memes  sacrifices  pouvaient  etre  imposes 
aux  etrangers  et  aux  nationaux ; 

Mais  qu’en  ce  moment,  il  s’agit  uniquement  de  savoir  si  la  situation 
faite  aux  nationaux,  et  qu’ils  doivent  subir,  sera  modifiee  radicalement, 
parce  qu’aux  nationaux  sont  substitues  des  etrangers  sous  une  forme 
ou  sous  une  autre ; 


526 


ORIGINAL  TEXTS 


Qu’une  telle  modification  ne  saurait  etre  admise  aisement,  parce 
qu’elle  serait  contraire  a cette  idee  simple  que  I’ayant-cause  n’a  pas 
plus  de  droit  que  son  auteur. 

Considerant  que  les  freres  Canevaro  se  presentent  comme  detenant 
les  titres  litigieux  en  vertu  d’un  endossement; 

Que  Ton  invoque  a leur  profit  I’effet  ordinaire  de  I’endossement  qui 
est  de  faire  considerer  le  porteur  d’un  titre  a ordre  comme  creancier 
direct  du  debiteur,  de  telle  sorte  qu’il  peut  repousser  les  exceptions  qui 
auraient  ete  opposables  a son  endosseur ; 

Considerant  que,  meme  en  ecartant  la  theorie  d’apres  laquelle,  en 
dehors  des  effets  de  commerce,  I’endossement  est  une  cession  entiere- 
ment  civile,  il  y a lieu,  dans  I’espece,  d’ecarter  I’effet  attribue  a 
I’endossement ; 

Qu’en  efif^et,  si  la  date  de  I’endossement  des  titres  de  1880  n’est  pas 
connue,  il  est  incontestable  que  cet  endossement  est  de  beaucoup  pos- 
terieur  a I’echeance;  qu’il  y a lieu,  des  lors,  d’appliquer  la  disposition 
du  Code  de  commerce  peruvien  de  1902  (art.  436)  d’apres  laquelle 
I’endossement  posterieur  a I’echeance  ne  vaut  que  comme  cession 
ordinaire ; 

Que,  d’ailleurs,  le  principe  susrappele  au  sujet  de  I’efltet  de  I’en- 
dossement  n’empeche  pas  d’opposer  au  porteur  les  exceptions  tirees 
de  la  nature  meme  du  titre,  qu’il  a connues  ou  du  connaitre ; qu’il  est 
inutile  de  faire  remarquer  que  les  freres  Canevaro  connaissaient  par- 
faitement  le  caractere  des  titres  endosses  a leur  profit. 

Considerant  que,  si  les  freres  Canevaro  ne  peuvent,  en  tant  que 
possesseur  de  la  creance  en  vertu  d’un  endossement,  pretendre  a une 
condition  plus  favorable  que  celle  de  la  societe  dont  ils  tiendraient 
leurs  droits,  il  est  permis  de  se  demander  si  leur  situation  ne  doit  pas 
etre  differente  en  les  envisageant  en  qualite  d’heritiers  de  Jose  Fran- 
cisco Canevaro,  comme  les  presente  une  declaration  notariee  du  6 
fevrier  1905 ; 

Qu’il  y a,  en  effet,  cette  difference  entre  le  cas  de  cession  et  le  cas 
d’heredite  que,  dans  ce  dernier,  ce  n’est  pas  par  un  acte  de  pure  volonte 
que  la  creance  a passe  d’une  tete  sur  une  autre ; 

Que,  neanmoins,  on  ne  trouve  aucune  raison  decisive  pour  admettre 
que  la  situation  a change  par  ce  fait  que  des  Italiens  ont  succede  a un 
Peruvien  et  que  les  heritiers  ont  un  titre  nouveau  qui  leur  permet  de  se 
prevaloir  de  la  creance  dans  des  conditions  plus  favorables  que  le 
de  cujus; 

Que  c’est  une  regie  generale  que  les  heritiers  prennent  les  biens  dans 
I’etat  ou  ils  se  trouvaient  entre  les  mains  du  defunt. 

Considerant  qu’enfin  il  a ete  soutenu  que  la  loi  peruvienne  de  1889 
sur  la  dette  interieure,  sans  changer  les  creances  existantes  contre  le 
Perou,  avait  seulement  donne  au  Gouvernement  la  faculte  de  s’acquitter 
de  ses  dettes  d’une  certaine  maniere  quand  les  creanciers  en  reclame- 
raient  le  paiement,  que  c’est  au  moment  ou  le  paiement  est  reclame 
qu’il  faut  se  placer  pour  savoir  si  I’exception  resultant  de  la  loi  peut 
etre  invoquee  contre  toutes  personnes,  specialement  contre  les 
etrangers ; 


THE  CANEVARO  CASE 


527 


Que,  les  proprietaires  actuals  de  la  creance  etant  des  Italians,  il  y 
aurait  lieu  pour  la  Tribunal  de  se  prononcer  sur  la  point  de  savoir  si  la 
loi  peruvienne  de  1889,  malgre  son  caractere  exceptionnel,  peut  etre 
imposee  aux  etrangers ; 

Mais  considerant  que  ce  point  de  vue  parait  en  desaccord  avec  les 
termes  generaux  et  I’esprit  de  la  loi  de  1889 ; 

Que  le  Congres,  dont  il  ne  s’agit  pas  d’apprecier  I’oeuvre  en  elle-meme, 
a entendu  liquider  completement  la  situation  financiere  du  Perou,  sub- 
stituer  les  litres  qu’il  creait  aux  litres  anciens ; 

Que  cette  situation  ne  peut  etre  modifiee,  parce  que  les  creanciers 
se  presentent  plus  ou  moins  tot  pour  le  reglement  de  leurs  creances ; 

Que  telle  etait  la  situation  de  la  maison  Canevaro,  peruvienne  au 
moment  ou  la  loi  de  1889  entrait  en  vigueur,  et  que,  pour  les  motifs 
deja  indiques,  cette  situation  n’a  pas  ete  changee  en  droit  par  le  fait 
que  la  creance  a,  par  endossement  ou  par  heritage,  passe  a des  Italiens. 

Considerant,  en  dernier  lieu,  qu’il  a ete  allegue  que  le  Gouvemement 
peruvien  doit  indemniser  les  reclamants  du  prejudice  que  leur  a 
occasionne  son  retard  a s’aquitter  de  la  dette  de  1880,  que  le  prejudice 
consiste  dans  la  difference  entre  le  paiement  en  or  et  le  paiement  en 
titres  de  la  dette  consolidee ; qu’ainsi  le  Gouvemement  peruvien  serait 
tenu  de  payer  en  or  la  somme  reclamee,  en  admettant  meme  que  la 
loi  de  1889,  se  soit  regulierement  appliquee  a la  creance ; 

Considerant  que  le  Tribunal  estime  qu’en  entrant  dans  cet  ordre 
d’idees,  il  sortirait  des  termes  du  Compromis  qui  le  charge  seulement 
de  decider  si  le  Gouvemement  du  Perou  doit  payer  en  argent  comptant 
ou  d’apres  les  dispositions  de  la  loi  peruvienne  du  12  juin  1889;  que, 
le  Tribunal  ayant  admis  cette  derniere  alternative,  la  premiere  solution 
doit  etre  exclue;  qu’il  n’est  pas  charge  d’apprecier  la  responsabilite 
qu’aurait  encourue  a un  autre  titre  le  Gouvemement  peruvien,  de 
rechercher  notamment  si  le  retard  a payer  peut  ou  non  etre  excuse 
par  les  circonstances  difficiles  dans  lesquelles  il  se  trouvait,  etant  donne 
surtout  qu’il  s’agirait  en  realite  d’une  responsabilite  encourue  envers 
line  maison  peruvienne  qui  etait  creanciere  quand  le  retard  s’est  produit. 

Considerant  qu’il  y a lieu  de  rechercher  quel  etait  le  montant  de  la 
creance  Canevaro  au  moment  ou  est  entree  en  vigueur  la  loi  de  1889 ; 

Qu’elle  se  composait  d’abord  du  capital  de  43,140  livres  sterling, 
mais  qu’il  faut  y ajouter  les  interets  ayant  couru  jusque  la; 

Que  les  interets  qui  etaient,  d’apres  le  decret  du  23  decembre  1880,  de 
4%  par  an  jusqu’aux  echeances  respectives  des  bons  delivres  et  qui 
etaient  compris  dans  le  montant  de  ces  bons,  doivent  etre,  a partir 
de  ces  echeances,  calcules  au  taux  legal  de  6%  (Art.  1274  du  Code 
civil  peruvien)  jusqu’au  I®*"  janvier  1889 ; 

Qu’on  obtient  ainsi  une  somme  de  £16,577.2.2  qui  doit  etre  jointe 
au  principal  pour  former  la  somme  globale  devant  etre  remboursee  en 
titres  de  la  dette  consolidee  et  devant  produire  un  interet  de  1 % payable 
en  or  a partir  du  1®''  janvier  1889  jusqu’au  paiement  definitif ; 

Considerant  que,  d’apres  ce  qui  a ete  decide  plus  haut  relativement 
a la  situation  de  Raphael  Canevaro,  c’est  seulement  au  sujet  de  ses 
deux  freres  que  le  Tribunal  doit  statuer. 


528 


ORIGINAL  TEXTS 


Considerant  qu’il  appartient  au  Tribunal  de  regler  le  mode  d’ex^u- 
tion  de  sa  sentence. 

Par  ces  Motifs, 

Le  Tribunal  arbitral  decide  que  le  Gouvemement  Peruvien  devra,  le 
31  juillet  1912,  remettre  a la  Legation  d’ltalie  a Lima  pour  le  compte 
des  freres  Napoleon  et  Carlo  Canevaro : 

1°.  en  titres  de  la  dette  interieure  (1%)  de  1889,  le  montant  nominal 
de  trente-neuf  mille  huit  cent  onze  livres  sterling  huit  sh.  un  p. 
(£39,811.8.1.)  contre  remise  des  deux  tiers  des  titres  delivres  de  23 
decembre  1880  a la  maison  Jose  Canevaro  e hijos; 

2°.  en  or,  la  somme  de  neuf  mille  trois  cent  quatre-vingt  huit  livres 
sterling  dix-sept  sh.  un  p.  (£9,388.17.1.),  correspondant  a I’interet  de 
1%  du  I®’’  Janvier  1889  au  31  juillet  1912. 

Le  Gouvemement  peruvien  pourra  retarder  le  paiement  de  cette  der- 
niere  somme  jusqu’au  I®""  Janvier  1913  a la  charge  d’en  payer  les  in- 
terets  a 6%  a partir  du  1®''  aout  1912. 

Fait  a la  Haye,  dans  I’Hotel  de  la  Cour  Permanente  d’Arbitrage, 
le  3 mai  1912. 

Le  President:  Louis  Renault 
Le  Secretaire  general:  Michiels  van  Verduynen 


Agreement  for  Arbitration,  April  2e^,  igid^ 


Riuniti  nel  ministero  delle  rela- 
zioni  estere  del  Peru  i sottoscritti, 
conte  Giulio  Bolognesi,  incaricato 
d’affari  dTtalia,  ed  il  dottor  don 
Meliton  F.  Porras,  ministro  delle 
relazioni  estere  del  Peru,  hanno 
convenuto  quanto  segue : 

II  govcrno  di  S.  M.  il  Re 
dTtalia  ed  il  governo  della  repub- 
blica  del  Peru,  non  avendo  potuto 
mettersi  d’accordo  riguardo  al 
reclamo  formulato  dal  primo  in 
nome  dei  signori  conti  Napoleone, 
Carlo  e Raffaele  Canevaro  per  il 
pagamento  della  somma  di  quaran- 
tatre  mila  cento  quaranta  lire  ster- 
line,  piu  gli  interessi  legali  che 
essi  sollecitano  dal  governo  del 
Peru, 

Hanno  determinato,  conforme- 
mente  all’art.  1®  del  trattato  per- 


Reunidos  en  el  Ministerio  de 
Relaciones  Exteriores  del  Peru, 
los  infrascritos  Sehores  Conte 
Giulio  Bolognesi,  Encargado  de 
Negocios  de  Italia,  y doctor  don 
Meliton  F.  Porras,  Ministro  del 
Ramo,  ban  convenido  en  lo 
siguiente : 

El  Gobierno  de  S.  M.  el  Rey 
de  Italia  y el  Gobierno  de  la 
Republica  Peruana,  no  habiendo 
podido  ponerse  de  acuerdo  re- 
specto  de  la  reclamacion  formu- 
lada  por  el  primero  a nombre  de 
los  Sehores  Condes  Napoleon, 
Carlos  y Rafael  Canevaro,  para  el 
pago  de  la  suma  de  cuarenta  y tres 
mil  ciento  cuarenta  libras  esterli- 
nas  y sus  intereses  legales,  que 
ellos  solicitan  del  Gobierno  del 
Peru, 

Han  determinado,  de  conformi- 
dad  con  el  art.  1“  del  Tratado 


’Official  report,  p.  5. 


THE  CANEVARO  CASE 


529 


manente  d’arbitrato  esistente  fra 
i due  paesi,  sottomettere  questa 
controversia  alia  corte  permanente 
d’arbitrato  dell’ A j a,  la  quale  dovra 
giudicare  in  diritto  i seguenti 
punti : 

Deve  il  governo  del  Peru  pagare 
in  effettivo  o in  base  alle  dis- 
posizioni  della  legge  peruana  del 
debito  intemo  del  12  giugno  1889 
le  cambiali  di  cui  sono  attual- 
mente  possessor!  i fratelli  Napo- 
leone,  Carlo  e Raffaele  Canevaro 
e che  furono  tratte  dal  govemo 
del  Peru  all’ordine  della  Casa  Jose 
Canevaro. & Hijos  per  la  somma 
di  43,140  lire  sterline,  piu  gli  in- 
teressi  legal!  di  questa  somma? 

Hanno  i fratelli  Canevaro  di- 
ritto ad  esigere  la  totalita  della 
somma  reclarata? 

Ha  il  conte  Raffaele  Canevaro 
diritto  ad  essere  considerato  recla- 
mante  italiano? 

Il  govemo  di  S.  M.  il  Re 
d’ltalia  ed  il  governo  della  repub- 
blica  del  Peru  si  obbligano  a 
nominare,  entro  quattro  mesi  di 
questo  protocollo,  i membri  della 
corte  arbitrale. 

Entro  sette  mesi  dalla  costitu- 
zione  della  corte  arbitrale  ambe- 
due  i govern!  le  presenteranno 
I’esposizione  completa  della  con- 
troversia, con  tutti  i document!, 
prove,  allegati  e argomenti  del 
caso;  ogni  governo  potra  disporre 
di  altri  cinque  mesi  per  presentare 
alia  corte  arbitrale  la  propria  ris- 
posta  all’altro  governo,  ed  in 
questa  sara  permesso  soltanto  di 
riferirsi  alle  argomentazioni  con- 
tenute  nell’esposizione  della  parte 
contraria. 

Si  considerera  allora  terminata 
la  discussione,  a meno  che  la 
corte  arbitrale  richieda  nuovi 


Permanente  de  Arbitraje  existente 
entre  los  dos  paises,  someter  esta 
controversia  a la  Corte  Perma- 
nente de  Arbitraje  de  La  Haye, 
la  cual  debera  juzgar  en  derecho 
los  siguientes  puntos: 

Debe  el  Gobierno  del  Peru 
pagar  en  efectivo,  6 con  aseglo  a 
las  disposiciones  de  la  ley  peruana 
de  deuda  interna  de  12  Junio  de 
1889,  los  libramientos  de  que  son 
actualmente  posedores  los  her- 
manos  Napoleon,  Carlos  y Rafael 
Canevaro  y que  fueron  girados 
par  el  Gobierno  Peruano  a la 
orden  de  la  Casa  Jose  Canevaro  y 
Hijos  para  la  suma  de  43,140 
libras  esterlinas  y ademas  los  in- 
tereses  legales  de  dicha  suma? 

Tienen  los  hermanos  Canevaro 
derecho  a exigir  la  totalidad  de  la 
suma  reclamada? 

Tiene  don  Rafael  Canevaro 
derecho  a ser  considerado  como 
reclamante  italiano? 

El  Gobierno  de  S.  M.  el  Rey 
de  Italia  y el  Gobierno  de  la 
Republica  Peruana  se  obligan  a 
nombrar,  dentro  de  cuatro  meses 
contados  desde  la  fecha  de  esto 
protocolo,  los  miembros  de  la 
Corte  Arbitrale. 

A los  siete  meses  de  la  consti- 
tucion  de  la  Corte  Arbitral,  ambos 
Gobiernos  le  presentaran  la  expo- 
sicion  completa  de  la  contraversia, 
con  todos  los  documentos,  prue- 
bas,  alegatos  y argumentos  del 
caso ; cada  Gobierno  podra  dis- 
poner  de  otros  cinco  meses  para 
presentar  ante  la  Corte  Arbitral 
su  respuesta  al  otro  Gobierno,  y 
en  dicha  respuesta  solamente  sera 
permetido  referirse  a las  alega- 
ciones  contenidas  en  la  exposicion 
de  la  Parte  Contraria. 

Se  considerera  entonces  termi- 
nada  la  discusion,  a menos  que  la 
Corte  Arbitral  solicite  neuvos 


530 


ORIGINAL  TEXTS 


documenti,  prove  od  allegati,  che 
dovranno  essere  presentati  entro 
quattro  mesi  contati  dal  momento 
in  cui  I’arbitro  li  chiede. 

Se  detti  documenti,  prove  od 
allegati  non  vengono  presentati 
entro  questo  termine,  si  pronun- 
ciera  la  sentenza  arbitrale,  come 
se  non  esistessero. 

In  fede  di  che,  i sottoscritti 
hanno  firmato  il  presente  proto- 
collo,  redatto  in  italiano  ed  in 
sjiagnuolo  e vi  hanno  apposto  i 
loro  rispettivi  sigilli. 

Fatto  in  doppio  esemplare,  in 
Lima,  il  venticinque  aprile  mille- 
novecentodieci. 


documentos,  pruebas  6 alegatos, 
que  deberan  ser  presentados  den- 
tro  de  cuatro  meses  contados 
desde  el  momento  en  que  el  Ar- 
bitro  los  pida. 

Si  dichos  documentos,  pruebas 
6 alegatos  no  se  habiesen  presen- 
tado  en  esto  termino,  se  pronun- 
ciera  la  sentencia  arbitral  como 
si  no  existieren. 

En  fe  de  lo  cual,  los  infrascritos 
firman  el  presente  Protocolo, 
redacto  en  italiano  y en  espanol, 
poniendo  en  el  sus  respectivos 
sellos. 

Hecho  en  doblo  ejemplar,  en 
Lima,  el  veinte  y cinco  de  abril 
de  mil  noveciento  dies. 


Giulio  Bolognesi 
M.  F.  PORRAS 


Notes  of  April  2J,  ipio,  concerning  the  Formation  of  the  Tribunal^ 

Ministerio  de  Relaciones  Exteriores 
No.  18 

Lima,  27  de  abril  de  jpio. 

Senor  encargado  de  negocios: 

No  habiendose  estipulado  en  el  protocolo  que  somete  a arbitraje  la 
reclamacion  presentada  contra  el  gobiemo  del  Peru  por  los  hermanos 
Canevaro,  la  forma  de  constitucion  de  la  corte  arbitral,  me  es  grato 
proponer  a vuestra  senoria  que  ella  se  haga  de  acuerdo  con  el  articulo 
87  de  la  convencion  para  el  arreglo  pacifico  de  los  conflictos  intema- 
cionales,  firmada  en  La  Haya  en  1907. 

Renuevo  a vuestra  senoria,  las  seguridades  de  mi  mayor  considera- 
cion. 

M.  F.  PoRRAS 

A1  senor  conde  Julio  Bolognesi,  encargado  de  negocios  de  Italia. 

(Traducci6n) 

Legaci6n  de  S.  M.  el  Rev  de  Italia 
No.  273 

Lima,  2^  de  abril  de  ipio. 

Senor  ministro: 

Tengo  el  honor  de  acusar  a V.  E.  recibo  de  su  nota  No.  18,  fecha 
de  hoy,  y me  es  grato  aceptar  la  propuesta  de  V.  E.  de  constituir  la 


^Boletin  del  Ministerio  de  Relaciones  Exteriores  (Peru),  No.  xxxv,  p.  263. 


THE  CANEVARO  CASE 


531 


corte  arbitral  de  La  Haya  que  debe  dar  su  fallo  en  la  controversia 
Canevaro,  con  arreglo  a las  disposiciones  del  articulo  87  de  la  conven- 
cion  para  el  arreglo  pacifico  de  los  conflictos  internacionales  firmada 
en  La  Haya  en  1907. 

Quiera,  senor  ministro,  aceptar  las  seguridades  de  mi  mas  alta  y 
distinguida  consideracion. 

Giulio  Bolognesi 

A S.  E.  el  doctor  don  Meliton  F.  Porras,  ministro  de  .relaciones 
exteriores. 


THE  RUSSIAN  INDEMNITY  CASE 


Award  of  the  Tribunal,  November  ii,  IQI2^ 

Par  un  Compromis  signe  a Constantinople  le  22  juillet/4  aout  1910, 
le  Gouvemement  Imperial  de  Russie  et  le  Gouvemement  Imperial 
Ottoman  sont  convenus  de  soumettre  a un  Tribunal  arbitral  la  de- 
cision definitive  des  questions  suivantes: 

“I.  Oui  ou  non,  le  Gk)uvernement  Imperial  Ottoman  est-il  tenu  de 
payer  aux  indemnitaires  russes  des  dommages-interets  a raison  des 
dates  auxquelles  ledit  gouvemement  a procede  au  payement  des  indem- 
nities fixees  en  execution  de  I’article  5 du  traite  du  27  janvier/8 
fevrier  1879,  ainsi  que  du  Protocole  de  meme  date?” 

‘TI.  En  cas  de  decision  affirmative  sur  la  premiere  question,  quel 
serait  le  montant  de  ces  dommages-interets?” 

Le  Tribunal  arbitral  a ete  compose  de 

Son  Excellence  Monsieur  Lardy,  Docteur  en  droit,  Membre  et  ancien 
President  de  ITnstitut  de  droit  international,  Envoye  extraordinaire 
et  Ministre  plenipotentiaire  de  Suisse  a Paris,  Membre  de  la  Cour 
Permanente  d’Arbitrage,  Surarbitre ; 

Son  Excellence  le  Baron  Michel  de  Taube,  Adjoint  du  Ministre  de 
ITnstruction  publique  de  Russie,  Conseiller  d’Etat  actuel,  Docteur  en 
droit,  associe  de  ITnstitut  de  droit  international,  Membre  de  la  Cour 
Permanente  d’Arbitrage; 

Monsieur  Andre  Mandelstam,  Premier  Drogman  de  I’Ambassade 
Imperiale  de  Russie  a Constantinople,  Conseiller  d’Etat,  Docteur  en 
droit  international,  associe  de  I’lnstitut  de  droit  international ; 

Herante  Abro  Bey,  Licencie  en  droit,  Conseiller  legiste  de  la  Sub- 
lime-Porte; 

et  Ahmed  Rechid  Bey,  Licencie  en  droit,  Conseiller  legiste  de  la 
Sublime-Porte ; 

Monsieur  Henri  Fromageot,  Docteur  en  droit,  associe  de  I’lnstitut 
de  droit  international,  Avocat  a la  Cour  d’Appel  de  Paris,  a fonc- 
tionne  comme  Agent  de  Gouvemement  Imperial  Russe  et  a ete  assiste 
de 

Monsieur  Francis  Rey,  Docteur  en  droit.  Secretaire  de  la  Commis- 
sion Europeenne  du  Danube,  en  qualite  de  Secretaire; 

Monsieur  Edouard  Clunet,  Avocat  a la  Cour  d’Appel  de  Paris, 
Membre  et  ancien  President  de  I’lnstitut  de  droit  international,  a 
fonctionne  comme  Agent  du  Gouvemement  Imperial  Ottoman  et  a 
ete  assiste  de 

Monsieur  Ernest  Roguin,  Professeur  de  Legislation  comparee  a 
rUniversite  de  Lausanne,  Membre  de  I’lnstitut  de  droit  international, 
en  qualite  de  Conseil  du  Gouvemement  Ottoman ; 


^Official  report,  p.  79. 


THE  RUSSIAN  INDEMNITY  CASE 


533 


Monsieur  Andre  Hesse,  Docteur  en  droit,  Avocat  a la  Cour  d’Appel 
de  Paris,  Depute,  en  qualite  de  Conseil  du  Gouvernement  Ottoman ; 

Youssouf  Kemal  Bey,  Professeur  a la  Faculte  de  droit  de  Constan- 
tinople, ancien  Depute,  Directeur  de  la  Mission  Ottomane  d’etudes 
juridiques,  en  qualite  de  Conseil  du  Gouvernement  Ottoman; 

Monsieur  C.  Campinchi,  Avocat  a la  Cour  d’Appel  de  Paris,  en 
qualite  de  Secretaire  de  I’Agent  du  Gouvernement  Ottoman. 

Le  Baron  Michiels  van  Verduynen,  Secretaire  general  du  Bureau  in- 
ternational de  la  Cour  Permanente  d’Arbitrage,  a fonctionne  comme 
Secretaire  general  et 

le  Jonkheer  W.  Roell,  Premier  secretaire  du  Bureau  international 
de  la  Cour,  a pourvu  au  Secretariat. 

Apres  une  premiere  seance  a La  Haye  le  15  fevrier  1911,  pour  regler 
certaines  questions  de  procedure,  les  Memoire,  Contre-Memoire,  Re- 
plique  et  Contre-Replique  ont  ete  dument  echange  entre  les  Parties 
et  communiques  aux  Arbitres,  qui  ont  respectivement  declare,  ainsi 
que  les  Agents  des  Parties,  renoncer  a demander  des  complements  de 
renseignements. 

Le  Tribunal  arbitral  s’est  reuni  de  nouveau  a La  Haye  les  28,  29, 
30,  31  octobre,  1®'',  2,  5 et  6 novembre  1912, 

et  apres  avoir  entendu  les  conclusions  orales  des  Agents  et  Conseils 
des  Parties,  il  a rendu  la  Sentence  suivante: 

Question  Prejudicielle 

Vu  la  demande  prejudicielle  du  Gouvernement  Imperial  Ottoman 
tendant  a faire  declarer  la  reclamation  du  Gouvernement  Imperial 
Russe  non  recevable  sans  examen  du  fond,  le  Tribunal 

attendu  que  le  Gouvernement  Imperial  Ottoman  base  cette  demande 
prejudicielle,  dans  ses  conclusions  ecrites,  sur  le  fait  “que,  dans  toute 
la  correspondance  diplomatique,  ce  sont  les  sujets  russes  individuelle- 
ment  qui,  beneficiant  d’une  stipulation  faite  en  leurs  noms,  soit  dans 
les  Preliminaires  de  Paix  signes  a San  Stefano  le  19  fevrier  3 mars 
1878,  soit  par  I’article  5 du  Traite  de  Constantinople  du  27  janvier  8 
fevrier  1879,  soit  par  le  Protocole  du  meme  jour,  ont  ete  les  creanciers 
directs  des  sommes  capitales  a eux  adjugees,  et  que  leurs  titre  a cet 
egard  ont  ete  constitues  par  les  decisions  nominatives  prises  par  la 
Commission  ad  hoc  reunie  a I’Ambassade  de  Russie  a Constantinople, 
decisions  nominatives  qui  ont  ete  notifiees  a la  Sublime-Porte ; 

“Que,  dans  ces  circonstances,  le  Gouvernement  Imperial  de  Russie 
aurait  du  justifier  de  la  survivance  des  droits  de  chaque  indemnitaire, 
et  de  I’individualite  des  personnes  aptes  a s’en  prevaloir  aujourd’hui, 
cela  d’autant  plus  que  la  cession  de  certains  de  ces  droits  a ete  com- 
muniquee  au  Gouvernement  Imperial  Ottoman” ; 

“Que  le  Gouvernement  Imperial  de  Russie  aurait  du  agir  de  meme, 
dans  I’hypothese  aussi  ou  I’Etat  russe  aurait  ete  le  creancier  direct 
unique  des  indemnites ; cela  parce  que  le  dit  Gouvernement  ne  saurait 
meconnaitre  son  devoir  de  transmettre  aux  indemnitaires  ou  a leurs 
ayants-cause  les  sommes  qu’il  pourrait  obterir  dans  le  proces  actuel  a 


534 


ORIGINAL  TEXTS 


titre  de  dommages-interets  moratoires,  les  indemnitaires  se  presentant, 
dans  cette  supposition,  comme  les  beneficiaires,  si  non  comme  les  crean- 
ciers,  de  la  stipulation  faite  dans  leur  interet ; 

“Que  cependant,  le  Gouvernement  Imperial  de  Russie  n’a  fourni 
aucune  justification  quant  a la  personnalite  des  indemnitaires  ou  de 
leurs  ayants-droit,  ni  quant  a la  survivance  de  leurs  pretentions.” 
(Contre-Replique  Ottomane,  p.  81  et  82.) 

Attendu  que  le  Gouvernement  Imperial  de  Russie  soutient,  au  con- 
traire,  dans  ses  conclusions  Writes, 

“Que  la  dette  stipulee  dans  le  Traite  de  1879  n’en  est  pas  moins  une 
dette  d’Etat  a Etat ; qu’il  n’en  saurait  etre  autrement  de  la  responsa- 
bilite  resultant  de  I’inexecution  de  la  dite  dette;  qu’en  consequence  le 
Gouvernement  Imperial  Russe  est  seul  qualifie  pour  en  donner  quit- 
tance et,  par  la-meme,  pour  toucher  les  sommes  destinees  a etre 
payees  aux  indemnitaires;  qu’au  surplus,  le  Gouvernement  Imperial 
Ottoman  ne  conteste  pas  au  Gouvernement  Imperial  Russe  la  qualite 
de  creancier  direct  de  la  Sublime-Porte ; 

“Que  le  Gouvernement  Imperial  Russe  agit  en  vertu  du  droit  qui 
lui  est  propre  de  reclamer  des  dommages-interets  en  raison  de  I’inexe- 
cution  d’un  engagement  pris  vis-a-vis  de  lui  directement ; 

“Qu’il  en  justifie  pleinement  en  etablissant  cette  inexecution,  qui 
n’est  d’ailleur  pas  contestee,  et  en  apportant  son  titre,  qui  est  ie 
Traite  de  1879  . . .; 

“Que  la  Sublime-Porte,  nantie  de  la  quittance  a elle  regulierement 
ddivree  par  le  Gouvernement  Imperial  Russe,  n’a  pas  a s’immiscer 
dans  la  repartition  des  sommes  distributes  ou  a distribuer  par  ledh 
Gouvernement  entre  ses  sujets  indemnitaires;  que  c’est  la  une  question 
d’ordre  interieur,  dont  le  Gouvernement  Imperial  Ottoman  n’a  pas  a 
connaitre”  (Replique  Russe,  pages  49  et  50). 

Considerant  que  I’origine  de  la  reclamation  remonte  a une  guerre, 
fait  international  au  premier  chef ; que  la  source  de  I’indemnite  est 
non  seulement  un  Traite  international  mais  un  Traite  de  paix  et  les 
accords  ayant  pour  objet  I’exccution  de  ce  Traite  de  paix;  que  ce 
traite  et  ces  accords  sont  intervenus  entre  la  Russie  et  la  Turquie 
reglant  entre  elles,  d’Etat  a Etat,  comme  Puissances  publiques  ct 
souveraines,  une  question  de  droit  des  gens;  que  les  preliminaires  de 
paix  ont  fait  rentrer  les  10  millions  de  roubles  attribues  a titre  de  dom- 
mages  et  interets  aux  sujets  russes  victimes  des  operations  de  guerre 
en  Turquie  au  nombre  des  indemnites  “que  S.  M.  I’Empereur  de  Russie 
reclame  et  que  la  Sublime-Porte  s’est  engagee  a lui  rembourser” ; que 
ce  caractere  de  creance  d’Etat  a Etat  a ete  confirme  par  le  fait  que  les 
reclamations  devaient  etre  examinees  par  une  Commission  exclusive- 
ment  russe;  que  le  Gouvernement  Imperial  de  Russie  a conserve  la 
haute  main  sur  I’attribution,  I’encaissement  et  la  distribution  des  in- 
demnites, en  sa  qualite  de  seul  creancier;  qu’il  importe  peu  de  savoir 
si,  en  theorie,  la  Russie  a agi  en  vertu  de  son  droit  de  proteger  ses 
nationaux  ou  a un  autre  titre,  du  moment  ou  c’est  envers  le  Gouveme- 
ment  Imperial  Russe  seul  que  la  Sublime-Porte  a pris  ou  a subi  I’en- 
gagement  reclame  d’clle : 


THE  RUSSIAN  INDEMNITY  CASE 


535 


Considerant  que  I’execution  des  engagements  est,  entre  Etats  comme 
entre  particuliers,  le  plus  sur  commentaire  du  sens  de  ces  engagements ; 

que,  lors  d’une  tentative  de  I’administration  Ottomane  des  Finances 
de  percevoir,  en  1885,  sur  une  quittance  donnee  par  I’Ambassade  de 
Russie  a Constantinople  lors  du  payement  d’un  acompte,  le  timbre 
proportionnel  exige  des  particuliers  par  la  legislation  ottomane,  la 
Russie  a immediatement  proteste  et  soutenu  “que  la  dette  etait  con- 
tractee  par  le  Gouvernement  Ottoman  vis-a-vis  celui  de  Russie”  . . . 
et  “non  pas  une  simple  creance  de  particuliers  decoulant  d’un  engage- 
ment ou  contrat  prive”  (Note  verbale  russe  du  15/27  mars  1885, 
Memoire  Russe,  annexe  N°.  19,  page  19)  ; que  la  Sublime-Porte  n’a 
pas  insiste,  et  qu’en  fait,  les  deux  Parties  ont  constamment,  dans  leur 
pratique  de  plus  de  quinze  ans,  agi  comme  si  la  Russie  etait  la  crean- 
ciere  de  la  Turquie  a I’exclusion  des  indemnitaires  prives; 

que  la  Sublime-Porte  a paye  sans  aucune  exception  tous  les  verse- 
ments  successifs  sur  la  seule  quittance  de  I’Ambassade  de  Russie  a 
Constantinople  agissant  pour  compte  de  son  Gouvernement ; 

que  la  Sublime-Porte  n’a  jamais  demande,  lors  des  versements 
d’acomptes,  si  les  beneficiaires  existaient  toujours  ou  quels  etaient  leurs 
ayants-cause  du  moment,  ni  d’apres  quelles  normes  les  acomptes  etaient 
repartis  entre  eux,  laissant  cette  mission  au  seul  Gouvernement  Im- 
perial de  Russie; 

Considerant  que  la  Sublime-Porte  pretend,  au  fond,  dans  le  litige 
actuel,  precisement  etre  entierement  liberee  par  les  payements  qu’elle 
a,  en  fait,  effectues  en  dehors  de  toute  participation  des  indemnitaires 
entre  les  mains  du  seul  Gouvernement  Imperial  de  Russie  represente 
par  son  ambassade; 

Par  ces  Motifs: 

Arrete 

la  demande  prejudicielle  est  escartee. 

Statuant  ensuite  sur  le  fond  le  Tribunal  arbitral  a rendu  la  Sentence 
suivante : 

I 

En  Fait 

Dans  le  Protocole  signe  a Andrinople  le  19/31  janvier  1878  et  qui 
a mis  fin  par  un  armistice  aux  hostilites  entre  la  Russie  et  la  Turquie, 
se  trouve  la  stipulation  suivante : 

“5®.  La  Sublime-Porte  s’engage  a dedommager  la  Russie  des  frais 
de  la  guerre  et  dcs  pertes  qu’elle  a du  s’imposer.  Le  mode,  soit 
pecuniaire,  soit  territorial  ou  autre,  de  cette  i-ndemnite  sera  regie 
ulterieurement.” 

L’article  19  des  Preliminaires  de  paix  signes  a San  Stefano  le  19 
fevrier/3  mars  1878  est  ainsi  conqu : 

“Les  indemnit4s  de  guerre  ct  les  pertes  imposees  a la  Russie  que 
S.  M.  I’Empereur  de  Russie  reclame  et  que  la  Sublime-Porte  s’est  en- 
gagee  a lui  rembourser  se  composent  de:  a)  900  millions  de  roubles 
de  frais  de  guerre  . . . b)  400  millions  de  roubles  de  dommages 


536 


ORIGINAL  TEXTS 


infliges  au  littoral  meridional  . . . c)  100  millions  de  roubles  de 

dommages  causes  au  Caucase  . . . d)  dix  millions  de  roubles 

de  dommages  et  interets  aux  sujets  et  institutions  russes  en  Turquie: 
total  1,400  millions  de  roubles.” 

Et  plus  loin : “Les  dix  millions  de  roubles  reclames  comme  indemnite 
pour  les  sujets  et  institutions  russes  en  Turquie  seront  payes  d mesure 
que  les  reclamations  des  interesses  seront  examinees  par  I’ambassade 
de  Russie  a Constantinople  et  transmises  d la  Sublime-Porte.” 

Au  congres  de  Berlin,  a la  seance  du  2 juillet  1878,  protocole  N°. 
11,  il  fut  entendu  que  les  10  millions  de  roubles  dont  il  s’agit  ne  re- 
gardaient  pas  I’Europe,  mais  seulement  les  deux  Etats  interesses,  et 
qu’ils  ne  seraient  pas  inseres  dans  le  traite  entre  les  Puissances  repre- 
sentees a Berlin.  En  consequence  la  question  fut  reprise  directement 
entre  la  Russie  et  la  Turquie,  qui  stipulerent,  dans  le  traite  definitif  de 
paix  signe  a Constantinople  le  27  janvier/8  fevrier  1879,  la  disposition 
suivante : 

Art.  V.  Les  r^lamations  des  sujets  et  institutions  russes  en  Tur- 
quie a titre  d’indemnite  pour  les  dommages  subis  pendant  la  guerre 
seront  payees  a mesure  qu’elles  seront  examinees  par  I’ambassade 
de  Russie  a Constantinople  et  transmises  a la  Sublime-Port.  La 
totalite  de  ces  reclamations  ne  pourra,  en  aucun  cas,  depasser  le 
chiffre  de  vingt-six  millions  sept  cent  cinquante  mille  francs.  Le 
terme  d’une  annee  apres  Techange  des  ratifications  est  fixe  comme 
date  a parti  r de  laquelle  les  reclamations  pourront  etre  presentees 
a la  Sublime-Porte,  et  celui  de  deux  ans  comme  date  apres  laquelle 
les  reclamations  ne  seront  plus  admises. 

Le  meme  jour,  27  janvier/8  fevrier  1879,  dans  le  Protocole  de 
signature  du  traite  de  paix,  le  Plenipotentiaire  russe  prince  Lobanow 
declara  que  la  somme  de  26,750,000  francs  specifiee  a I’article  V : “con- 
stitue  un  maximum  auquel  la  totalite  des  reclamations  ne  pourra 
vraisemblablement  jamais  atteindre ; il  ajoute  qu’une  commission  ad 
hoc  sera  instituee  a I’ambassade  de  Russie  pour  examiner  scruplueuse- 
ment  les  reclamations  qui  lui  seront  presentees,  et  que,  d’apres  les 
instructions  de  son  Gouvemement,  un  delegue  ottoman  pourra  prendre 
part  a I’examen  de  ces  reclamations.” 

Les  ratifications  du  traite  de  paix  out  ete  echangees  a Saint-Peters- 
bourg  le  9/21  fevrier  1879. 

La  commission  instituee  a I’ambassade  de  Russie  et  composee  de 
trois  fonctionnaires  russes  commenqa  aussitot  ses  travaux.  Le  com- 
missaire  ottoman  s’abstint  generalement  d’y  prendre  part.  Le  mon- 
tant  des  pertes  des  sujets  russes  fut  fixe  par  la  commission  a 6 millions 
186,543  francs.  Elies  furent  successivement  notifiees  a la  Sublime- 
Porte  entre  le  22  octobre/3  novembre  1880  et  le  29  janvier/10  fevrier 
1881 ; leur  montant  ne  fut  pas  conteste  et  I’ambassade  de  Russie  re- 
clama  le  payement  en  meme  temps  qu’elle  transmettait  a la  Sublime- 
Porte  les  dernieres  decisions  de  la  commission. 


THE  RUSSIAN  INDEMNITY  CASE 


537 


Le  23  septembre  1881,  I’ambassade  transmet  une  “petition”  de  I’avo- 
cat  Rossolato,  “mandataire  special  de  plusieurs  sujets  russes”  ayant 
a toucher  des  indemnites,  petition  adressee  a I’ambassade  et  mettant  le 
Gouvernement  Ottoman  en  demeure  de  s’entendre  avec  lui  “dans  un 
delai  de  huit  jours  a partir  de  la  signification,  sur  le  mode  de  paye- 
ment,”  declarant  “le  tenir  d’ores  et  deja  responsable  de  tons  dom- 
mages-interets  et  notamment  des  interets  moratoires.” 

Par  convention  signee  a Constantinople  le  2/14  mai  1882,  les  deux 
gouvernements  conviennent,  art.  I®'',  que  I’indemnite  de  guerre,  dont  le 
solde  avait  ete  fixe  a 802,500,000  francs  par  I’art.  IV  du  traite  de  paix 
de  1879  apres  defalcation  de  la  valeur  des  territoires  cedes  par  la  Tur- 
quie,  ne  porterait  pas  d’interets  et  serait  payee  sous  forme  de  cent 
versements  annuels  de  350,000  livres  turques  soit  environ  8 millions 
de  francs. 

Le  19  juin/1®''  juillet  1884,  aucune  somme  n’ayant  ete  versee  pour 
les  indemnitaires,  I’ambassade  “reclame  formellement  le  payement  in- 
tegral des  indemnites  qui  ont  ete  adjugees  aux  sujets  russes  . . . ; 

elle  se  verra  obligee,  dans  le  cas  contraire,  a leur  reconnaitre  la  faculte 
de  pretendre,  outre  le  capital,  a des  interets  proportionnes  au  retard 
que  subit  le  reglement  de  leur  creance.” 

Le  19  decembre  1884,  la  Sublime-Porte  verse  un  premier  acompte 
de  50,000  livres  turques,  soit  environ  1,150,000  fr. 

En  1885  se  produit  I’union  de  la  Bulgarie  et  de  la  Roumelie  orientale 
et  la  guerre  serbo-bulgare.  La  Turquie  ne  paie  aucun  nouvel  acompte. 
Une  note  de  rappel  en  date  de  janvier  1886  ayant  ete  sans  resultat, 
I’ambassade  insiste,  le  15/27  fevrier  1887;  elle  transmet  une  “petition” 
qui  lui  est  parvenue  d’indemnitaires  russes,  dans  laquelle  ils  tiennent 
le  Gouvernement  Ottoman  “responsable  de  ce  surcroit  de  dommages 
qui  resulte  pour  eux  du  retard  apporte  au  payement  de  leurs  indem- 
nites,” et  I’ambassade  ajoute;  “De  nouveaux  ajoumements  obligeraient 
le  Gouvernement  Imperial  a reclamer  en  faveur  de  ses  nationaux  des 
interets  pour  les  retards  que  subit  le  reglement  de  leurs  creances.” 
Apres  des  notes  de  rappel  de  juillet  et  decembre  1887  demeurees 
sans  effet,  I’ambassade  se  plaint  le  26  janvier/7  fevrier  1888,  de  ce  que 
la  Turquie  ait  paye  diverses  creances  posterieures  aux  obligations  con- 
tractees  envers  les  indemnitaires  russes.  Elle  rappelle  que  “les  arrieres 
se  montent  a la  somme  d’environ  215,000  livres  turques,  un  seul  verse- 
ment  de  50,000  livres  turques  ayant  ete  fait  sur  le  total  de  265,000 
livres  turques  adjugees” ; elle  demande  done  “d’urgence 
que  les  sommes  dues  aux  sujets  russes  soient  immediatement,  et  avant 
tout  autre  payement,  prelevees  sur  celles  qui  seront  payees  par  X 
. . .”  fun  debiteur  du  Gouvernement  Imperial  Ottoman). 

Le  22  avril  1889,  la  Turquie  verse  un  second  acompte  de  50,000 
livres. 

Le  31  decembre  1890/12  janvier  1891,  I’ambassade,  constatant  qu’il 
a ete  paye  seulement  100,000  livres  sur  un  total  de  265,000,  ecrit  a la 
Sublime-Porte  que  le  retard  apporte  au  reglement  de  cette  creance 
fait  subir  des  pertes  toujours  croissantes  aux  nationaux  russes ; elle 
croit  done  devoir  prier  la  Sublime-Porte  “de  provoquer  des  ordres  im- 


538 


ORIGINAL  TEXTS 


mediats  a qui  de  droit  pour  que  la  somme  due  . . . soit  payee 

sans  retard,  attssi  bien  que  les  interets  legaux  au  sujet  desquels 
[I’ambassade]  a eu  I’honneur  de  prevenir  la  Sublime-Porte  par  note 
du  15/27  fevrier  1887.” 

En  aout  1891  nouveau  rappel.  En  octobre/novembre  1892,  I’am- 
bassade  ecrit  “que  cela  ne  peut  durer  indefiniment  ainsi” ; que  “les 
instances  des  sujets  russes  deviennent  de  plus  en  plus  pressantes,” 
que  ‘Tambassade  a le  devoir  de  s’en  faire  avec  energie  I’interprete, 
. . . qu’il  s’agit  la  d’une  obligation  indiscutable  et  d’un  devoir  in- 
ternational a remplir  . . .,”  que  “le  Gouvernement  Ottoman  ne 

saurait  plus  invoquer  pour  s’y  soustraire  I’etat  precaire  de  ses  finances,” 
et  conclut  en  demandant  un  “prompt  et  definitif  reglement  de  la 
creance  . . 

Le  2/14  avril  1893,  un  troisieme  versement  de  75,000  livres  turques 
est  eflfectue;  la  Sublime-Porte,  en  donnant  avis  de  ce  payement  des 
le  27  mars,  ajoute  que,  pour  le  reliquat,  la  moitie  en  sera  inscrite  au 
budget  courant  et  I’autre  moitie  au  budget  prochain ; “la  question  ainsi 
reglee  met  heureusement  fin  aux  incidents  auxquels  elle  avait  donne 
lieu.”  La  Porte  espere  des  lors  que  Tambassade  voudra  bien,  dans  ses 
sentiments  d’amitie  sincere  a Tegard  de  la  Turquie,  accepter  definitive- 
ment  le  monopole  du  tumbeki  a Tinstar  des  autres  Puissances. 

A cette  occasion,  et  en  rappelant  que  le  Gouvernement  Imperial 
Russe  “s’est  toujours  montre  amical  et  conciliant  dans  toutes  les 
affaires  touchant  aux  interets  financiers  de  TEmpire  ottoman,”  Tam- 
bassade prend  acte  le  30  du  meme  mois  des  dispositions  annoncees  en 
vue  du  payement  et  consent  a ce  que  les  Russes  faisant  en  Turquie  le 
commerce  des  tumbeki  soient  soumis  au  regime  nouvellement  cree. 

Un  an  plus  tard,  le  23  mai/4  juin  1894,  n’ayant  regu  aucun  verse- 
ment nouveau,  Tambassadeur,  apres  avoir  constate  la  non-execution 
de  “Tarrangement”  auquel  il  avait  “consenti  afin  de  faciliter  au  Gou- 
vernement Ottoman  Taccomplissement  de  son  obligation,”  se  declare 
‘■place  dans  Timpossibilite  d’accepter  des  promesses,  des  arrangements 
ou  des  atermoiements  ulterieurs,”  et  “oblige  d’^insister  pour  que  ia 
totalite  du  reliquat  du  aux  sujets  russes,  qui  monte  d 91,000  livres 
turques,  soit,  sans  plus  de  retard,  verse  a Tambassade  . . . De 

recentes  operations  financieres  viennent  de  mettre  a la  disposition  [de 
la  Sublime-Porte]  des  sommes  importantes.” 

Le  27  octobre  de  la  meme  annee  1894,  un  versement  de  50,000  livres 
turques  est  effectue,  et  la  Sublime-Porte  ecrit,  deja  le  3 du  meme  mois, 
a Tambassade:  “Quant  au  reliquat  de  41  mille  livres  turques,  la  Banque 
Ottomane  en  garantira  le  payement  dans  le  cours  de  Texercice  pro- 
chain.” 

En  1896,  une  correspondance  est  echangee  entre  la  Sublime-Porte 
et  Tambassade  sur  la  question  de  savoir  si  les  revenus  sur  lesquels  la 
Banque  Ottomane  devait  prelever  le  reliquat  ne  sont  pas  deja  engages 
a la  Russie  pour  le  payement  de  Tindemnite  de  guerre  proprement  dite 
ou  si  la  partie  de  ces  revenus  superieure  a Tannuite  affectee  a Tindem- 
nite de  guerre  ne  peut  pas  etre  employee  a Tindemnisation  des  sujets 


THE  RUSSIAN  INDEMNITY  CASE 


539 


russes  victimes  des  evenements  de  1877/8.  Au  cours  de  cette  corre- 
spondance,  la  Sublime-Porte  indique,  dans  les  notes  qu’elle  adresse  a 
I’ambassade  les  11  fevrier  et  28  mai  1896,  que  le  reliquat  du  s’eleve 
a la  somme  de  43,978  livres  turques. 

De  1895  a 1899,  de  graves  evenements  survenus  en  Asie-Mineure 
obligent  la  Turquie  a provoquer  un  moratoire  en  faveur  de  la  Banque 
Ottomane  sur  sa  demande;  I’insurrection  des  Druses,  celle  de  la  Crete 
qui  est  suivie  de  la  guerre  turco-grecque  de  1897,  des  insurrections 
en  Macedoine  amenent  a diverses  reprises  la  Turquie  a mobiliser  des 
troupes  et  meme  des  armees. 

Pendant  trois  ans,  aucune  correspondance  n’est  echangee,  et, 
lorsqu’elle  reprend,  la  Sublime-Porte  indique  de  nouveau  le  chiffre 
de  43,978  livres  turques,  comme  le  montant  du  reliquat  des  indemnites, 
dans  les  notes  qu’elle  adresse  a I’ambassade  les  19  juillet  1899  et  5 
juillet  1900.  A son  tour,  I’ambassade,  dans  ses  notes  de  25  avril/8 
mai  1900  et  3/16  mars  1901,  indique  le  meme  chififre  mais  se  plaint  de 
ce  que  les  ordres  donnes  dans  diverses  provinces  “pour  le  payement 
des  43,978  livres  turques,  montant  du  reliquat  de  I’indemnite  due  aux 
sujets  russes,”  n’ont  pas  ete  suivis  d’effet,  et  de  ce  que  la  Banque 
Ottomane  n’a  rien  verse ; elle  prie  instamment  la  Sublime-Porte  de 
vouloir  bien  donner  a qui  de  droit  des  ordres  categoriques  pour  le 
payement,  sans  plus  de  retard,  des  sommes  susmentionnees.” 

Apres  qu’en  mai  1901  la  Sublime-Porte  eut  annonce  que  le  Departe- 
ment  des  Finances  avait  ete  invite  a regler  dans  le  courant  du  mois  le 
reliquat  de  I’indemnite,  la  Banque  Ottomane  avisait  enfin,  les  24  fevrier 
et  26  mai  1902,  I’ambassade  de  Russie  qu’elle  avait  regu  et  tenait  a la 
disposition  de  I’ambassade  42,438  livres  turques  sur  le  reliquat  de 
43,978  livres. 

L’ambassade,  en  accusant  deux  mois  plus  tard  reception  de  cet  envoi 
a la  Sublime-Porte  le  23  juin/6  juillet  1902,  faisait  observer  “que  le 
Gouvemement  Imperial  Ottoman  a mis  plus  de  vingt  ans  pour  s’ac- 
quitter,  et  imparfaitement  encore,  d’une  dette  dont  le  reglement  im- 
mediat  s’imposait  a tous  les  points  de  vue,  un  solde  de  1,539  livres 
turques  restant  tou jours  impaye.  Se  referant,  par  consequent,  a ses 
notes  des  23  septembre  1881,  15/27  fevrier  1887  et  31  decembre  1890/ 
12  janvier  1891  au  sujet  des  interets  a courir  sur  la  dite  creance,  restee  si 
longtemps  en  souffrance”  I’ambassade  transmet  une  requete  par  laquelle 
les  indemnitaires  reclament,  en  substance,  des  interets  composes  a. 
12%  depuis  le  1®''  janvier  1881  jusqu’au  15  mars  1887,  et  a 9%  depuis 
cette  date,  a laquelle  le  taux  de  I’interet  legal  a ete  abaisse  par  une  loi 
ottomane.  La  somme  reclamee  par  les  signataires  s’elevait  a une 
vingtaine  de  millions  de  francs  au  printemps  de  1902  pour  un  capital 
primitif  de  6,200,000  francs  environ.  La  note  se  terminait  comme 
suit : “L’ambassade  imperiale  se  plait  a croire  que  la  Sublime-Porte 
n’hesitera  pas  a reconnaitre  en  principe  le  bien  fonde  de  la  reclama- 
tion exposee  dans  cette  requete ; dans  le  cas  pourtant  ou  la  Sublime- 
Porte  trouverait  des  objections  a soulever  contre  le  montant  de  !a 
somme  reclamee  par  les  sujets  russes,  I’ambassade  imperiale  ne  verrait 


540 


ORIGINAL  TEXTS 


pas  d’inconvenients  a deferer  Texamen  des  details  a une  commission 
composee  de  delegues  Russes  et  Ottomans.” 

La  Sublime- Porte  repond  le  17  de  ce  meme  mois  de  juillet  1902  que 
Tart.  V du  Traite  de  paix  de  1879  et  le  protocole  de  meme  date  ne 
stipulent  pas  d’interets  et  qu’a  la  lumiere  des  negociations  diploma- 
tiques  qui  ont  eu  lieu  a ce  sujet,  elle  etait  loin  de  s’attendre  a voir 
formuler  au  dernier  moment  de  la  part  des  indemnitaires  de  telles 
demandes,  dont  I’effet  serait  de  rouvrir  une  question  qui  se  trouvait 
heureusement  terminee.  L’ambassade  replique  le  3/16  fevrier  1903 
en  insistant  “sur  le  payement  des  dommages-interets  reclames  par  ses 
ressortissants.  II  n’y  a que  le  montant  de  ces  dommages  qui  pourrait 
faire  I’objet  d’une  enquete.” — Sur  une  note  de  rappel  en  date  du  2/15 
aout  1903,  la  Sublime-Porte  repond  le  4 mai  1904  en  maintenant  sa 
maniere  de  voir  et  en  se  declarant  toutefois  disposee  a deferer  la  ques- 
tion a un  arbitrage  a La  Haye  dans  le  cas  ou  Ton  insisterait  sur  la 
reclamation. 

Au  bout  de  quatre  ans,  I’ambassade  accepte  cette  suggestion  par 
note  du  19  mars/1®''  avril  1908. 

Le  compromis  d’arbitrage  a ete  signe  a Constantinople  le  22  juillet/4 
aout  1910. 

Quant  au  petit  solde  de  1,539  livres  turques,  il  avait  ete  mis  par  la 
Banque  Ottomane  en  decembre  1902  a la  disposition  de  I’ambassade 
de  Russie  qui  I’a  refuse  et  il  demeure  consigne  a la  disposition  de 
I’ambassade. 

II 

En  Droit 

1.  Le  Gouvernement  Imperial  de  Russie  base  sa  demande  sur  “la 
responsabilite  des  Etats  pour  inexecution  de  dettes  pecuniaires” ; cette 
responsabilite  implique,  selon  lui,  ‘Tobligation  de  payer  des  dom- 
mages-interets et  specialement  les  interets  des  sommes  indument  re- 
tenues” ; “I’obligation  de  payer  des  interets  moratoires”  est  “la  mani- 
festation pratique,  en  matiere  de  dettes  d’argent,”  de  la  responsabilite 
des  Etats  (Replique  Russe,  pp.  27  et  51).  “La  meconnaissance  de  ces 
principes  serait  aussi  contraire  a la  notion  meme  du  droit  des  gens  que 
dangereuse  pour  la  securite  des  relations  pacifiques ; en  effet,  en  de- 
clarant I’Etat  debiteur  irresponsable  du  delai  qu’il  inflige  a son  crean- 
cier,  on  lui  reconnaitrait,  par  la  meme,  la  liberte  de  n’ecouter  que  son 
caprice  pour  s’executer ; ...  on  obligerait,  d’autre  part,  I’Etat 

creancier  a recourir  a la  violence  contre  une  semblable  pretention 
. . . et  a ne  rien  attendre  d’un  pretendu  droit  des  gens  manifeste- 

ment  incapable  d’assurer  le  respect  de  la  parole  donnee”  (Memoire 
Russe,  p.  29). 

En  d’autres  termes,  et  toujours  dans  I’opinion  du  Gouvernement 
Imperial  de  Russie,  “il  ne  s’agit  nullement  ici  d’interets  conventionnels, 
c’est-a-dire  nes  d’une  stipulation  particuliere  . . .”  mais  “I’obli- 

gation  incombant  au  Gouvernement  Imperial  Ottoman  de  payer  des 
interets  moratoires  est  nee  du  retard  a executer,  e’est-a-dire  de  Tin- 


THE  RUSSIAN  INDEMNITY  CASE 


541 


execution  partielle  du  Traite  de  paix ; cette  obligation  est  bien  nee,  il 
est  vrai,  a I’occasion  du  traite  de  1879,  mais  elle  provient  ex  post  facto 
d’une  cause  nouvelle  et  accidentelle,  qui  est  la  faute  de  la  Sublime- 
Porte  a remplir  ses  engagements  comme  elle  s’y  etait  obligee.”  (Me- 
moire  Russe,  p.  29;  Replique  Russe,  pp.  22  et  27.) 

2.  Le  Gouvernement  Imperial  Ottoman,  tout  en  admettant  en  termes 
explicites  le  principe  general  de  la  responsabilite  des  Etats  a raison  de 
I’inexecution  de  leurs  engagements  ( Contre- Replique,  p.  29,  No.  286 
Note  et  p.  52,  No.  358),  soutient,  au  contraire,  qu’en  droit  international 
public,  des  interets  moratoires  n’existent  pas  “sans  stipulation  ex- 
presse”  (Contre-Memoire  Ottoman,  p.  31,  No.  83,  et  p.  34,  No.  95)  ; 
qu’un  Etat  “n’est  pas  un  debiteur  comme  un  autre”  (Ibidem,  p.  33, 
No.  90),  et  que,  sans  songer  a soutenir  “qu’aucune  regie  observable 
entre  particuliers  ne  puisse  etre  appliquee  entre  Etats”  (Contre-Re- 
plique  Ottomane,  p.  26,  No.  275),  on  doit  tenir  compte  de  la  situation 
sui  generis  de  I’Etat  puissance  publique;  que  diverses  legislation  (par 
exemple  la  loi  frangaise  de  1831  qui  institue  une  prescription  extinctive 
de  cinq  ans  pour  les  dettes  de  I’Etat,  le  droit  romain  qui  pose  le  prin- 
cipe “Fiscus  ex  suis  contractibus  usuras  non  dat,”  Lex  17,  paragr.  5, 
Digeste  22,  1)  reconnaissent  a I’Etat  debiteur  une  situation  privilegiee 
(Contre-Memoire  Ottoman,  p.  33,  No.  92)  ; qu’en  admettant  contre  un 
Etat  une  obligation  implicite,  non  expressement  stipulee,  en  etendant 
part  exemple  a un  Etat  debiteur  les  regies  de  la  mise  en  demeure  et 
ses  effets  en  droit  prive,  on  rendrait  cet  Etat  “debiteur  dans  une  mesure 
plus  forte  qu’il  ne  I’aurait  voulu,  risquerait  de  compromettre  la  vie 
politique  de  I’Etat,  de  nuire  a ses  interets  primordiaux,  de  bouleverser 
son  budget,  de  I’empecher  de  se  defendre  contre  une  insurrection  ou 
contre  I’etranger.”  (Contre-Memoire  Ottoman,  p.  33,  No.  91.) 

Eventuellement  et  pour  le  cas  ou  une  responsabilite  devrait  lui  in- 
comber, le  Gouvernement  Imperial  Ottoman  conclut  a ce  que  cette 
responsabilite  consiste  uniquement  en  interets  moratoires  et  cela  seule- 
ment  a partir  d’une  mise  en  demeure  reconnue  reguliere.  (Contre- 
Replique  Ottomane,  pp.  71  et  suivantes.  Nos.  410  et  suivants.) 

II  oppose  en  outre  les  exceptions  de  la  chose  jugee,  de  la  force 
majeure,  du  caractere  de  liberalite  des  indemnites,  et  de  la  renoncia- 
tion  tacite  ou  expresse  de  la  Russie  au  benefice  de  la  mise  en  demeure. 

3.  Les  rapports  de  droit  qui  font  I’objet  du  present  litige  etant  in- 
tervenus  entre  Etats  Puissances  publiques  sujets  du  droit  international 
et  ces  rapports  rentrant  dans  le  domaine  du  droit  public,  le  droit  appli- 
cable est  le  droit  international  public  soit  droit  des  gens  et  les  Parties 
sont  avec  raison  d’accord  sur  ce  point.  (Memoire  Russe,  p.  32;  Con- 
tre-Memoire Ottoman,  numeros  47  a 54,  p.  18-20;  Replique  Russe,  p. 
18;  Contre-Replique  Ottomane,  p.  17,  numeros  244  et  245.) 

4.  La  demande  du  Gouvernement  Imperial  de  Russie  est  fondee  sur 
le  principe  general  de  la  responsabilite  des  Etats,  a I’appui  duquel  il  a 
invoque  un  grand  nombre  de  sentences  arbitrales. 

La  Sublime-Porte,  sans  contester  ce  principe  general,  pretend  echap- 
per  a son  application  en  affirmant  le  droit  des  Etats  a une  situation  ex- 


542 


ORIGINAL  TEXTS 


ceptionnelle  et  privilegiee  dans  le  cas  special  de  la  responsabilite  en 
matiere  de  dettes  d’argent. 

Elle  declare  inoperants  la  plupart  des  precedents  arbitraux  in- 
voques,  comme  ne  s’appliquant  pas  a cette  categoric  speciale. 

Le  Gouvemement  Imperial  Ottoman  fait  observer,  a I’appui  de  sa 
maniere  de  voir,  qu’en  doctrine,  on  distingue  des  responsabilites  di- 
verses  selon  leur  origine  et  selon  leur  etendue.  Ces  nuances  se  rat- 
tachent  surtout  a la  theorie  des  responsabilites  en  Droit  romain  et  dans 
les  legislations  inspirees  du  Droit  romain.  Les  Memoires  Ottomans 
rappellent  les  distinctions  suivantes  dont  quelques-unes  sont  classiques : 
Les  responsabilites  sont  d’abord  divisees  en  deux  categories,  suivant 
qu’elles  ont  pour  cause  un  debt  ou  quasi-delit  (responsabilite  delic- 
tuelle)  ou  un  contrat  (responsabilite  contractuelle). — Parmi  les  re- 
sponsabilites contractuelles,  on  distingue  encore  suivant  qu’il  s’agit 
d’obligations  ayant  pour  objet  une  prestation  quelconque  autre  qu’une 
somme  d’argent  ou  suivant  qu’il  s’agit  de  prestations  d’un  caractere 
exclusivement  pecuniaire,  d’une  dette  d’argent  proprement  dite.  Ces 
diverses  categories  de  responsabilites  ne  sont  pas  appreciees  en  droit 
civil  d’une  maniere  absolument  identique,  les  circonstances  necessaires 
a la  naissance  de  la  responsabilite  ainsi  que  ces  consequences  etant 
variables. — Tandis  qu’en  matiere  de  responsabilites  delictuelles  aucune 
formalite  quelconque  n’est  necessaire,  en  matiere  contractuelle  il  faut 
toujours  une  mise  en  demeure.  Tandis  qu’en  matiere  d’obligations 
ayant  pour  objet  une  prestation  autre  qu’une  somme  d’argent  comme 
d’ailleurs  en  matiere  delictuelle,  la  reparation  du  dommage  est  complete 
{lucrum  cessans  et  damnum  emergens),  cette  reparation,  en  matiere  de 
dettes  d’argent,  est  restreinte  forfaitairement  aux  interets  de  la  somme 
due,  lesquels  ne  courront  qu’a  partir  de  la  mise  en  demeure.  Les 
dommages-interets  sont  appel«  compensatoires  quand  ils  sont  la  com- 
pensation du  dommage  resultant  d’un  debt  ou  de  I’inexecution  d’une 
obligation.  Ils  sont  appeles  dommages-interets  moratoires,  bien  qu’ils 
representent  encore  une  compensation,  lorsqu’ils  sont  la  consequence 
d’un  retard  dans  I’execution  d’une  obligation. — Les  auteurs  enfin  ap- 
pellent  interets  moratoires  les  interets  forfaitairements  alloues  en  cas 
de  retard  dans  le  payement  de  dettes  d’argent,  les  distinguant  ainsi 
d’autres  interets  ajoutes,  parfois,  pour  fixer  le  montant  total  d’une 
indemnite,  a 1’evaluation  en  argent  d’un  dommage,  ces  derniers  etant 
appeles  interets  compensatoires. 

Ces  distinctions  du  droit  civil  s’expbquent:  En  matiere  de  respon- 
sabibte  contractuelle  en  effet,  on  est  en  droit  d’exiger  d’un  co-contrac- 
tant  une  diligence  dont  la  victime  d’un  debt  imprevu  ne  saurait  etre 
tenue. — En  matiere  de  dettes  d’argent,  la  difficulte  d’evaluer  les  con- 
sequences de  la  demeure  expbque  qu’on  ait  fixe  forfaitairement  le 
montant  du  dommage. 

La  these  du  Gouvemement  Imperial  Ottoman  consiste  a soutenir 
qu’en  droit  international  public,  la  responsabilite  speciale  consistant 
au  payement  d’interets  moratoires  en  cas  de  retard  dans  le  reglement 
d’une  dette  d’argent  liquide  n’existe  pas  pour  un  Etat  debiteur.  La 
Subbme-Porte  ne  conteste  pas  la  responsabilite  des  Etats  s’il  s’agit  de 


THE  RUSSIAN  INDEMNITY  CASE 


543 


dommages-interets  compensatoires,  ni  des  interets  pouvant  rentrer  dans 
le  calcul  de  ces  dommages-interets  compensatoires.  La  responsabilitc 
que  la  Sublime-Porte  decline,  c’est  celle  pouvant  resulter,  sous  forme 
d’interets  de  retard  ou  moratoires  au  sens  restreint,  du  retard  dans 
I’execution  d’une  obligation  pecuniaire. 

II  importe  de  rechercher  si  ces  denominations  variees,  ces  appella- 
tions creees  par  les  commentateurs,  correspondent  a des  differences  in- 
trinseques  dans  la  nature  meme  du  droit,  a des  differences  dans  I’es- 
sence  juridique  de  la  notion  de  responsabilitc. — Le  tribunal  est  d’avis 
que  tous  les  dommages-interets  sont  tou jours  la  reparation,  la  com- 
pensation d’une  faute.  A ce  point  de  vue,  tous  les  dommages-interets 
sont  compensatoires,  peu  importe  le  nom  qu’on  leur  donne.  Les  in- 
terets forfaitaires  alloues  au  creancier  d’une  somme  d’argent  a partir 
de  la  mise  en  demeure  sont  la  compensation  forfaitaire  de  la  faute  du 
debiteur  en  retard  exactement  comme  les  dommages-interets  ou  les 
interets  alloues  en  cas  de  debt,  de  quasi-delit  ou  d’inexecution  d’une 
obligation  de  faire,  sont  la  compensation  du  prejudice  subi  par  le  crean- 
cier, la  representation  en  argent  de  la  responsabilitc  du  debiteur  fautif, 
— Exagerer  les  consequences  des  distinctions  faites  en  droit  civil  dans 
la  responsabilitc  se  legitimerait  d’autant  moins  qu’il  se  dessine,  dans 
plusieurs  legislations  recentes,  une  tendance  a attenucr  ou  a supprimer 
les  adoucissements  apportes  par  le  Droit  romain  et  ses  derives  a la  re- 
sponsabilite  en  matiere  de  dettes  d’argent. — II  est  certain  en  effet  que 
toutes  les  fautes,  quelle  qu’en  soit  I’origine,  finissent  par  etre  evaluees 
en  argent  et  transformees  en  obligation  de  payer;  dies  aboutissent 
toutes,  ou  peuvent  aboutir,  en  derniere  analyse,  a une  dette  d’argent. 
— II  n’est  done  pas  possible  au  tribunal  d’apercevoir  des  differences 
essentielles  entre  les  diverses  responsabilites.  Identiques  dans  leur 
origine,  la  faute,  elles  sont  les  memes  dans  leurs  consequences,  la 
reparation  en  argent. 

Le  Tribunal  est  done  de  I’avis  que  le  principe  general  de  la  respon- 
sabilite  des  Etats  implique  une  responsabilitc  speciale  en  matiere  de 
retard  dans  le  payement  d’une  dette  d’argent,  a moins  d’etablir  I’exis- 
tence  d’une  coutume  internationale  contraire. 

Le  Gouvernement  Imperial  de  Russie  et  la  Sublime-Porte  ont  ap- 
porte  au  debat  une  serie  de  sentences  arbitrales  qui  ont  admis,  affirme 
et  consacre  le  principe  de  la  responsabilitc  des  Etats.  La  Sublime- 
Porte  considere  comme  inoperantes  la  presque  totalite  de  ces  sentences 
et  elimine  meme  celles  dans  lesquelles  I’arbitre  a expressement  alloue 
I’interet  de  sommes  d’argent.  Le  Gouvernement  Imperial  Ottoman  est 
d’avis  qu’il  s’agit  la  d’interets  compensatoires  et  il  les  ecarte  comme 
sans  application  dans  le  litige  actuel.  Le  Tribunal,  pour  les  motifs  in- 
diques  plus  haut,  est  au  contraire  de  I’avis  qu’il  n’existe  pas  de  raisons 
pour  ne  pas  s’inspirer  de  la  grande  analogic  qui  existe  entre  les  diverses 
formes  de  la  responsabilitc ; cette  analogic  apparait  comme  particuliere- 
ment  etroite  entre  les  interets  dits  moratoires  et  les  interets  dits  com- 
pensatoires ; I’analogie  parait  complete  entre  allocation  d’interets  a 
partir  d’une  certaine  date  a I’occasion  de  devaluation  de  la  responsa- 
bilite  en  capital,  et  I’allocation  d’interets  sur  un  capital  fixe  par  conven- 


544 


ORIGINAL  TEXTS 


tion  et  demeure  impaye  par  un  debiteur  en  faute.  La  seule  difference 
est  que,  dans  un  des  cas,  les  interets  sont  alloues  par  le  juge  puisque 
la  dette  n’etait  pas  exigible  et  que  dans  I’autre  le  montant  de  la  dette 
etait  fixe  par  convention  et  que  les  interets  deviennent  exigibles  auto- 
matiquement  en  cas  de  mise  en  demeure. 

Pour  infirmer  cette  analogie  tres  etroite,  il  faudrait  que  la  Sublime- 
Porte  put  etablir  I’existence  d’une  coutume,  de  precedents  d’apres 
lesquels  des  interets  moratoires  au  sens  restreint  du  mot  auraient  ete 
refuses  en  tant  qii’interets  moratoires,  I’existence  d’une  coutume  de- 
rogeant,  en  matiere  de  dette  pecuniaire,  aux  regies  generates  de  la  re- 
sponsabilite. — Le  Tribunal  est  d’avis  que  cette  preuve,  non  seulement 
n’a  pas  ete  faite,  mais  que  le  Gouvernement  Imperial  Russe  a pu  se 
prevaloir,  au  contraire,  de  plusieurs  sentences  arbitrales  dans  lesquelles 
des  interets  moratoires  ont  ete,  parfois  il  est  vrai  avec  des  nuances  et 
dans  une  mesure  discutables,  alloues  a des  Etats  {Mexique-Venezuela, 
2 octobre  1903,  Memoire  Russe,  p.  28  et  note  5 ; Contre-Memoire  Otto- 
man, p.  38,  N°.  107 ; Colombie-Italie,  9 avril  1904,  Replique  Russe,  p. 
28  et  note  7;  Contre-Replique  Ottomane,  p.  58,  N°.  368;  Etats-Unis- 
Choctaivs,  Replique  Russe,  p.  29 ; Contre-Replique  Ottomane,  p.  59, 
N°.  369.  Etats-Unis-Venezueia,  5 decembre  1885,  Replique  Russe,  p. 
28  et  note  5).  Il  y a lieu  d’ajouter  a ces  cas  la  sentence  rendue  le  2 
juillet  1881  par  S.  M.  I’Empereur  d’Autriche  dans  I’affaire  de  la  Mos- 
quitia,  en  ce  sens  que  I’arbitre  n’a  nullement  refuse  des  interets  mora- 
toires comme  tels,  mais  a simplement  prononce  que  I’allocation  du 
capital  ayant  le  caractere  d’une  liberalite,  cela  excluait,  dans  la  pensee 
de  I’arbitre,  des  interets  de  retard  (Replique  Russe,  p.  28,  note  4; 
Contre-Replique  Ottomane,  p.  55,  N°.  365,  note). 

Il  reste  a examiner  si  la  Sublime-Porte  est  fondee  a soutenir  qu’un 
Etat  n’est  pas  un  debiteur  comme  un  autre,  qu’il  ne  peut  etre  “debiteur 
dans  une  mesure  plus  forte  qu’il  ne  I’aurait  voulu,”  et  qu’en  lui  im- 
posant  des  obligations  qu’il  n’a  pas  stipulees,  par  exemple  les  respon- 
sabilites  d’un  debiteur  prive,  on  risquerait  de  compromettre  ses  finances 
et  meme  son  existence  politique. 

Des  I’instant  ou  le  Tribunal  a admis  que  les  diverses  responsabilites 
des  Etats  ne  se  distinguent  pas  les  unes  des  autres  par  des  differences 
essentielles,  que  toutes  se  resolvent  ou  peuvent  finir  pas  se  resoudre 
dans  le  payement  d’une  somme  d’argent,  et  que  la  coutume  Interna- 
tionale et  les  precedents  concordent  avec  ces  principes,  il  faut  en  con- 
clure  que  la  responsabilite  des  Etats  ne  saurait  etre  nice  ou  admise 
qu’entierement  et  non  pour  partie ; il  ne  serait  des  lors  pas  possible  au 
tribunal  de  la  declarer  inapplicable  en  matiere  de  dettes  d’argent  sans 
etendre  cette  inapplicabilite  a toutes  les  autres  categories  de  responsa- 
bilites. 

Si  un  Etat  est  condamne  a des  dommages-interets  compensatoires 
d’un  debt  ou  de  I’inexecution  d’une  obligation,  il  est,  encore  plus  que 
dans  le  cas  de  retard  dans  le  payement  d’une  dette  d’argent  conven- 
tionnelle,  debiteur  dans  une  mesure  qu’il  n’aurait  pas  stipulee  volon- 
tairement. — Quant  aux  consequences  de  ces  responsabilites  pour  les 


THE  RUSSIAN  INDEMNITY  CASE 


545 


finances  de  I’Etat  debiteur,  dies  peuvent  etre  au  moins  aussi  graves, 
sinon  davantage,  s’il  s’agit  des  dommages-interets  appeles  compensa- 
toires  par  la  Sublime-Porte,  que  s’il  s’agit  des  simples  interds  mora- 
toires  au  sens  restreint  du  mot.  Pour  peu  d’ailleurs  que  la  responsa- 
bilite  mette  en  peril  I’existence  de  I’Etat,  elle  constituerait  un  cas  de 
force  majeure  qui  pourrait  dre  invoque  en  droit  international  public 
aussi  bien  que  par  un  debiteur  prive. 

Le  Tribunal  est  done  d’avis  que  la  Sublime-Porte,  qui  a accepte 
explicitement  le  principe  de  la  responsabilite  des  Etats,  n’est  pas  fondee 
a demander  une  exception  a cette  responsabilite  en  matiere  de  dettes 
d’argent,  en  invoquant  sa  qualite  de  Puissance  publique  et  les  conse- 
quences politiques  et  financieres  de  cette  responsabilite. 

5.  Pour  dablir  en  quoi  consiste  cette  responsabilite  speciale  incom- 
bant  a I’Etat  debiteur  d’une  dette  conventionnelle  liquide  et  exigible, 
il  convient  maintenant  de  rechercher,  en  procedant  par  analogic  comme 
I’ont  fait  les  sentences  arbitrales  invoquees,  les  principes  generaux  de 
droit  public  et  prive  en  cette  matiere,  tant  au  point  de  vue  de  I’dendue 
de  cette  responsabilite  qu’a  celui  des  exceptions  opposables. 

Les  legislations  privees  des  Etats  faisant  partie  du  concert  europeen 
admettent  toutes,  comme  le  faisait  autrefois  le  Droit  romain,  I’obliga- 
tion  de  payer  au  moins  des  interets  de  retard  a titre  d’indemnite  for- 
faitaire  lorsqu’il  s’agit  de  I’inexecution  d’une  obligation  consistant  dans 
le  payement  d’une  somme  d’argent  fixee  conventionnellement,  liquide 
et  exigible,  et  cela  au  moins  a partir  de  la  mise  en  demeure  du  de- 
biteur.— Quelques  legislations  vont  plus  loin  et  considerent  que  le  de- 
biteur est  deja  en  demeure  des  la  date  de  I’echeance  ou  encore  admet- 
tent la  reparation  complete  des  dommages  au  lieu  des  simples  interets 
forfaitaires. 

Si  la  plupart  des  legislations  ont,  a I’exemple  du  Droit  romain,  exige 
une  mise  en  demeure  expresse,  e’est  que  le  creancier  est  en  faute  de 
son  cote  par  manque  de  diligence  tant  qu’il  ne  reclame  pas  le  paye- 
ment d’une  somme  liquide  et  exigible. 

Le  Gouvemement  Imperial  Russe  (Memoire,  p.  32)  admet  lui-meme, 
en  faveur  de  la  necessite  d’une  mise  en  demeure,  qu’en  equite,  il  peut 
convenir  “de  ne  pas  prendre  par  surprise  un  Etat  debiteur  passible 
d’interets  moratoires,  alors  qu’aucun  avertissement  ne  I’a  rappele  a 
I’observation  de  ses  engagements.”  Les  auteurs  (p.  ex.  Heffter,  DroU 
international  de  V Europe,  paragr.  94),  font  observer  que,  lors  de 
“I’execution  d’un  traite  public,  il  faut  proceder  avec  moderation  et  avec 
equite,  d’apres  la  maxime  qu’on  doit  traiter  les  autres  comme  on 
voudrait  etre  traite  soi-meme.  Il  faut,  en  consequence,  accorder  des 
delais  convenables,  afin  que  la  partie  obligee  subisse  le  moins  de  pre- 
judice possible.  L’oblige  peut  attendre  la  mise  en  demeure  du  crean- 
cier avant  d’etre  responable  du  retard,  s’il  ne  s’agit  pas  de  prestations 
dont  I’execution  est  rattachee  d’une  maniere  expresse  a une  epoque 
determinee.”  Voir  aussi  Merig^hac  Traite  de  I’ arbitrage  international, 
Paris,  1895,  p.  290. 

D’assez  nombreuses  sentences  arbitrales  Internationales  ont  admis. 


546 


ORIGINAL  TEXTS 


meme  lorsqu’il  s’agissait  de  dommages-interets  moratoires,  qu’il  n’y 
avait  pas  lieu  de  les  faire  courir  toujours  des  la  date  du  fait  dommage- 
able  (Etats-Unis  contre  V enezuela,  Orinoco,  sentence  de  la  Haye  du 
25  octobre  1910  protocoles,  p.  59,  Etats-Unis  contre  Chili,  15  mai  1863, 
sentence  de  S.  M.  le  Roi  des  Beiges  Leopold  I,  Lafontaine,  Pasicrisie, 
p.  36,  colonne  2 et  p.  37,  colonne  1,  Allemagne  contre  Venezuela,  Ar- 
rangement du  7 mai  1903,  Ralston  & Doyle,  Venezuelan  Arbitrations, 
Washington,  1904,  p.  520  a 523,  Etats-Unis  contre  Venezuela,  5 de- 
cembre  1885,  Moore,  Digest  of  International  Arbitrations,  p.  3545  et  p. 
3567,  Vol.  4,  etc.,  etc.). 

II  n’y  a done  pas  lieu,  et  il  serait  contraire  a I’equite  de  presumer 
une  responsabilite  de  I’Etat  debiteur  plus  rigoureuse  que  celle  imposee 
au  debiteur  prive  dans  un  grand  nombre  de  legislations  europeennes. 
L’equite  exige,  comme  I’indique  la  doctrine,  et  comme  le  Gouveme- 
ment  Imperial  Russe  I’admet  lui-meme,  qu’il  y ait  eu  avertissement, 
mise  en  demeure  adressee  au  debiteur  d’une  somme  ne  portant  pas 
d’interets.  Les  memes  motifs  reclament  que  la  mise  en  demeure  men- 
tionne  expressement  les  interets,  et  concourent  a faire  ecarter  une 
responsabilite  depassant  les  simples  interets  forfaitaires. 

II  resulte  de  la  correspondance  produite  que  le  Gouvernement  Im- 
perial Russe  a expressement  et  en  termes  absolument  categoriques, 
reclame  de  la  Sublime-Porte  le  payement  du  capital  et  “des  interets” 
par  note  de  son  ambassade  a Constantinople  en  date  du  31  decembre 
1890/12  Janvier  1891.  Entre  Etats,  la  voie  diplomatique  constitue  le 
mode  de  communication  normal  et  regulier  pour  leurs  relations  de 
droit  international  public ; cette  mise  en  demeure  est  done  reguliere  en 
la  forme. 

Le  Gouvernement  Imperial  Ottoman  doit  done  etre  tenu  pour  re- 
sponsable  des  interets  de  retard  a partir  de  la  reception  de  cette  mise 
en  demeure. 

Le  Gouvernement  Imperial  Ottoman  invoque,  pour  le  cas  ou  une 
responsabilite  lui  serait  imposee,  diverses  exceptions  dont  il  rest  a 
examiner  la  portee : 

6.  L’exception  de  la  force  majeure,  invoquee  en  premiere  ligne,  est 
opposable  en  droit  international  public  aussi  bien  qu’en  droit  prive; 
le  droit  international  doit  s’adapter  aux  necessites  politiques.  Le 
Gouvernement  Imperial  Russe  admet  expressement  (Replique  Russe, 
p.  33  et  note  2)  que  I’obligation  pour  un  Etat  d’executer  les  traites 
pent  flechir  “si  I’existence  meme  de  I’Etat  vient  a etre  en  danger,  si 
I’observation  du  devoir  international  est  . . . self  destructive.” 

Il  est  incontestable  que  la  Sublime-Porte  prouve,  a I’appui  de  I’ex- 
ception  de  la  force  majeure  (Contre-Memoire  Ottoman,  p.  43,  Nos. 
119  a 128,  Contre-Replique  Ottomane,  p.  64.  Nos.  382  a 398  et  p. 
87)  que  la  Turquie  s’est  trouvee  de  1881  a 1902  aux  prises  avec  des 
difhcultes  financieres  de  la  plus  extreme  gravite,  cumulees  avec  des 
evenoments  interieurs  et  exterieurs  (insurrections,  guerres)  qui  I’ont 
obligee  a donner  des  affectations  speciales  a un  grand  nombre  de  ses 
revenus,  a subir  un  controle  etranger  d’une  partie  de  ses  finances,  a 


THE  RUSSIAN  INDEMNITY  CASE 


547 


accorder  meme  un  moratoire  a la  Banque  Ottomane,  et,  en  general,  a 
ne  pouvoir  faire  face  a ses  engagements  qu’avec  des  retards  ou  des 
lacunes  et  cela  au  prix  de  grands  sacrifices.  Mais  il  est  avere,  d’autre 
part,  que,  pendant  cette  meme  periode  et  notamment  a la  suite  de  la 
creation  de  la  Banque  Ottomane,  la  Turquie  a pu  contracter  des  em- 
prunts  a des  taux  favorables,  en  convertir  d’autres,  et  finalement  amor- 
tir  une  partie  importante,  evaluee  a 350  millions  de  francs,  de  sa  dette 
publique  (Replique  Russe,  p.  37).  II  serait  manifestement  exagere 
d’admettre  que  le  payement  (ou  la  conclusion  d’un  emprunt  pour  le 
payement)  de  la  somme  relativement  minime  d’environ  six  millions  de 
francs  du  aux  indemnitaires  russes  aurait  mis  en  peril  I’existence  de 
I’Empire  Ottoman  ou  gravement  compromis  sa  situation  interieure 
ou  exterieure.  Uexception  de  la  force  majeure  ne  saurait  done  etre 
accueillie. 

7.  La  Sublime-Porte  soutient  ensuite  “que  la  reconnaissance  d’une 
creance  de  capital  au  profit  des  indemnitaires  russes  constituait  une 
liberalite  convenue  dans  leur  interet  entre  les  deux  Gouvernements” 
(Contre-Replique,  No.  153,  p.  19;  No.  331,  p.  44;  No.  365,  p.  55,  et 
conclusions,  p.  87) — Elle  fait  observer  que  le  Code  civil  allemand, 
paragraphe  522,  le  Droit  commun  germanique,  la  jurisprudence 
autrichienne  et  le  Droit  romain  invoque  a titre  suppletoire  (Loi  16 
praemium,  Digeste  22,  1)  interdisent  de  f rapper  d’interets  moratoires 
la  donation. — Elle  invoque  surtout  la  sentence  arbitrale  rendue  le  2 
juillet  1881  par  S.  M.  I’Empereur  d’Autriche  dans  Taffaire  de  la  Mos- 
quitia  entre  la  Grande-Bretagne  et  le  Nicaragua. 

Dans  cette  affaire,  la  Grande-Bretagne  avait  renonce,  par  un  traite 
de  1860,  au  protectorat  sur  la  Mosquitia  et  a la  ville  de  Grey  Town 
(San  Juan  del  Norte)  et  reconnu  sur  la  Mosquitia  la  souverainete  du 
Nicaragua  en  stipulant  que  cette  Republique  payerait  pendant  dix  ans 
au  chef  des  Mosquitos,  pour  lui  faciliter  I’etablissement  du  self-govern- 
ment dans  ses  territoires,  une  rente  de  5,000  dollars  qui  ne  tarda  pas 
a demeurer  impayee.  Le  chef  des  Mosquitos  beneficiait  done,  dans  la 
pensee  de  I’arbitre,  d’une  veritable  liberalite,  reclamee  en  sa  faveur  du 
Nicaragua  par  la  Grande-Bretagne,  qui,  elle,  avait  fait  des  sacrifices 
politiques  en  renongant  a son  protectorat  et  au  port  de  Grey  Town. — 
Dans  I’opinion  du  Tribunal,  les  indemnitaires  russes,  eux,  ont  subi  des 
dommages,  ont  ete  victimes  de  faits  de  guerre ; la  Turquie  s’est  en- 
gagee  a rembourser  le  montant  de  ces  dommages  a toutes  les  victimes 
russes  qui  auraient  fait  evaluer  leur  prejudice  par  la  commission  insti- 
tuee  aupres  de  I’ambassade  de  Russie  a Constantinople.  Les  decisions 
de  cette  commission  n’ont  pas  ete  contestees  et  le  Tribunal  arbitral  n’a 
pas  a les  reviser  ni  a apprecier  si  elles  ont  ou  non  ete  trop  genereuses. 
Si  I’indemnisation  par  la  Turquie  des  Russes  victimes  des  operations 
de  guerre  n’etait  pas  obligatoire  en  droit  des  gens  commun,  elle  n’a 
rien  de  contraire  a celui-ce  et  pent  etre  consideree  comme  la  transfor- 
mation en  obligation  juridique  d’un  devoir  moral  par  un  traite  de  paix 
dans  des  conditions  analogues  a une  indemnite  de  guerre  proprement 
dite. — Dans  toute  la  correspondance  diplomatique  echangee  depuis 


548 


ORIGINAL  TEXTS 


Irente  ans  ^ur  cette  affaire,  les  Russes  victimes  des  operations  de  guerre 
ont  toujours  ete  consideres  par  les  deux  parties  signataires  des  accords 
de  1878/1879  comme  des  indemnitaires  et  non  comme  des  donataires. 
Enfin,  la  Turquie  a regu  la  contre-partie  de  sa  pretendue  liberalite  dans 
le  fait  de  la  cessation  des  hostilites  (Replique  Russe,  p.  50,  paragr. 
2).  II  n’est  done  pas  possible  d’admettre  I’ existence  d’une  liberalite 
et  encoie  moins  une  donation,  et  il  devient,  par  suite,  superflu  de  re- 
chercher  si,  en  droit  international  public,  les  donateurs  doivent  benefi- 
cier  de  I’exemption  d’interets  moratoires  etablie  a leur  profit  par  cer- 
taines  legislations  privees. 

8.  La  Sublime-Porte  invoque  Vexception  de  la  chose  jugee,  en  s’ap- 
puyant  sur  le  fait  que  trois  indemnitaires  ont  demande  a la  commission 
instituee  aupres  de  I’ambassade  de  Russie  a Constantinople  des  interets 
jusqu’a  parfait  payement,  que  la  commission  a ecarte  leur  requete  et 
que  cette  solution  negative  serait  encore  plus  certainement  intervenue 
a regard  des  autres  indemnitaires  qui  n’ont  pas  reclame  de  semblables 
interets.  ( Contre-Replique  Ottomane,  p.  86). 

Cette  exception  ne  saurait  etre  accueillie  parce  que,  meme  en  admet- 
tant  que  la  commission  de  Constantinople  puisse  etre  consideree  comme 
un  tribunal,  la  question  actuellement  pendante  est  celle  de  savoir  si  des 
dommages-interets  sont  dus,  a posteriori  a raison  des  dates  auxquelles 
ont  ete  payees  les  indemnites  evaluees  en  1879/81  par  la  Commission ; 
or  celle-ci  n’a  pas  juge  et  n’a  pu  juger  cette  question. 

9.  La  Sublime-Porte  invoque,  comme  demiere  exception,  le  fait 
“qu’il  a ete  entendu,  tacitement  et  meme  expressement,  pendant  tout  le 
cours  des  onze  ou  douze  dernieres  annees  de  correspondances  diplo- 
matiques,  que  la  Russie  ne  reclamait  pas  d’interets  ni  de  dommages- 
interets  d’aucune  sorte  qui  auraient  ete  a la  charge  de  I’Empire  Otto- 
man” et  “que  le  Gouvernement  Imperial  de  Russie,  une  fois  le  capital 
integralement  mis  a sa  disposition,  ne  pouvait  pas  valablement  revenir 
d’une  fagon  unilaterale  sur  I’entente  convenue  de  sa  part”  (Contre- 
Replique  Ottomane,  pp.  89-91). 

Le  Gouvernement  Imperial  Ottoman  fait  observer  avec  raison  que 
si  la  Russie  a fait  parvenir  a Constantinople,  par  la  voie  diplomatique, 
le  31  decembre  1890/12  janvier  1891,  une  mise  en  demeure  reguliere 
d’voir  a payer  le  capital  et  les  interets,  il  resulte,  d’autre  part,  de  la 
correspondance  subseqtiente,  qu’a  I’occasion  du  payement  des  acomptes, 
aucune  reserve  d’interets  n’a  figure  dans  les  regus  delivres  par  I’ambas- 
sade,  et  que  celle-ci  n’a  jamais  impute  les  sommes  regues  sur  les  interets. 
Il  en  resulte  aussi  que  les  Parties  ont  non  seulement  ebauche  des  com- 
binaisons  pour  arriver  au  payement,  mais  se  sont  abstenues  de  faire 
mention  des  interets  pendant  dix  ans  environ.  Il  en  resulte  surtout 
que  les  deux  Gouvemements  ont  interprete  de  fagon  identique  le  terme 
de  reliquat  de  I’indemnite;  que  ce  terme,  employe  pour  la  premiere 
fois  par  le  Ministere  Ottoman  des  Affaires  Etrangeres  dans  une  com- 
munication du  27  mars  1893,  revient  frequemment  dans  la  suite; 
que  les  deux  Gouvemements  ont  vise  constamment  par  le  mot  reliquat 
les  fractions  du  capital  restant  du  a la  date  des  notes  echangees,  ce 


THE  RUSSIAN  INDEMNITY  CASE 


549 


qui  laisse  de  cote  les  interets  moratoires ; que  I’ambassadeur  de  Russie 
a Constantinople  a ecrit  le  23  mai/4  juin  1894:  “Je  suis  oblige  d’in- 
sister  pour  que  la  totalite  du  reliqmt  du  aux  sujets  russes,  qui  monte 
d pi,ooo  livres  turques,  soit,  sans  plus  de  retard,  verse  a I’ambassade, 
afin  de  faire  droit  aux  justes  plaintes  et  reclamations  des  interesses 
. . . et  mettre  ainsi  reellement,  selon  I’expression  de  Votre  Ex- 

cellence, fin  aux  incidents  auxquels  elle  avait  donne  lieu” ; que  cette 
somme  de  91,000  livres  turques  etait  exactement  celle  qui  demeurait 
alors  due  sur  le  capital  et  qu’ainsi  les  interets  moratoires  ont  ete  laisses 
de  cote; — que  le  3 octobre  de  la  meme  annee  1894,  la  Turquie,  sur  )e 
point  de  payer  un  acompte  de  50,000  livres,  a annonce  a I’ambassade, 
sans  rencontrer  d’objections,  que  la  Banque  Ottomane  “garantira  le 
payement  du  reliquat  de  41,000  livres  turques"; — que  le  13/25  janvier 
1896,  I’ambassade  a repris  le  meme  terme  de  reliquat  de  I’indemnite 
tout  en  protestant  contre  I’affectation  par  la  Turquie  a la  Banque  Otto- 
mane, de  del%ations  sur  des  revenus  deja  engages  au  Gouvernement 
Imperial  Russe  pour  le  payement  de  I’indemnite  de  guerre ; — que,  le 
11  fevrier  de  cette  meme  annee  1896,  a I’occasion  de  la  discussion  des 
ressources  a fournir  a la  Banque  Ottomane,  la  Sublime-Porte  a men- 
tionne,  dans  une  note  adressee  a I’ambassade,  “les  43,978  livres  turques 
representant  le  reliquat  de  I’ indemnite” ; — que,  quelques  jours  plus 
tard,  le  10/22  fevrier,  I’ambassade  a repondu  en  se  servant  des  memes 
mots  “solde”  ou  “reliquat  de  I’indemnite,”  et,  que  le  28  mai, 
le  Ministere  Ottoman  des  Affaires  Etrangeres  a mentionne 
derechef,  “la  somme  de  43,978  livres  turques  representant  ledit  reli- 
quat” ; — qu’il  en  a ete  de  meme  dans  une  note  de  I’ambassade  datee  du 
25  avril/8  mai  1900,  bien  qu’il  se  fut  ecoule  pres  de  quatre  ans  entre 
ces  communications  et  cedes  de  1896  et  qu’un  rappel  de  la  question 
des  interets  s’imposat  en  quelque  sorte  apres  un  aussi  long  delai ; que 
cette  meme  expression  “reliquat  de  I’indemnite”  figure  dans  une  note 
de  la  Sublime-Porte  du  5 juillet  1900; — qu’enfin,  le  3/16  mars  1901, 
I’Ambassade  de  Russie,  apres  avoir  constate  que  la  Banque  Ottomane 
n’a  pas  fait  de  nouveaux  versements  “pour  le  payement  des  43,978 
livres  turques,  montant  du  reliquat  de  I’indemnite  due  aux  sujets 
russes,”  a demande  I’envoi  a qui  de  droit  d’ordres  “categoriques  pour 
le  payement  sans  plus  de  retard  des  sommes  susmentionnees” ; — que  ce 
reliquat  ayant,  a un  petit  solde  pres,  ete  tenu  par  la  Banque  Ottomane 
a la  disposition  de  I’ambassade,  c’est  seulement  au  bout  de  plusieurs 
mois,  le  23  juin/6  juillet,  que  cette  derniere  a transmis  a la  Sublime- 
Porte  une  demande  “des  interesses”  concluant  au  payement  d’une 
vingtaine  de  millions  de  francs  pour  interets  de  retard,  en  exprimant 
I’espoir  que  la  Sublime-Porte  “n’hesitera  pas  a reconnaitre,  en  principe, 
le  bien  fonde  de  la  reclamation,”  sauf  “a  deferer  I’examen  des  details 
a une  commission”  mixte  russo-turque ; — qu’en  resume,  depuis  onze 
ans  et  davantage,  et  jusqu’a  une  date  posterieure  au  payement  du 
reliquat  du  capital,  il  n’avait  non  seulement  plus  ete  question  d’interets 
entre  les  deux  Gouvernements  mais  ete  a maintes  reprises  fait  men- 
tion seulement  du  reliquat  du  capital. 


550 


ORIGINAL  TEXTS 


Des  I’instant  ou  le  Tribunal  a reconnu  que,  d’apres  les  principes 
generaux  et  la  coutume  en  droit  international  public,  il  y avait  simili- 
tude des  situations  entre  un  Etat  et  un  particulier  debiteurs  d’une 
somme  conventionnelle  liquide  et  exigible,  il  est  equitable  et  juridique 
d’appliquer  aussi  par  analogie  les  regies  de  droit  prive  commun  aux 
cas  ou  la  demeure  doit  etre  consideree  comme  purgee  et  le  benefice  de 
celle-ci  supprimee. — En  droit  prive,  les  effets  de  la  demeure  sont  sup- 
primes  lorsque  le  creancier,  apres  avoir  constitue  le  debiteur  en  de- 
meure, accorde  un  ou  plusieurs  delais  pour  satisfaire  a I’obligation 
principale  sans  reserver  les  droits  acquis  par  la  demeure  {Toullier- 
Duvergier,  Droit  frangais,  tome  III,  p.  159,  N°.  256),  ou  encore  lorsque 
“le  creancier  ne  donne  pas  suite  a la  sommation  qu’il  avait  faite  au 
debiteur,”  et  “ces  regies  s’appliquent  aux  dommages  interets  et  aussi 
aux  interets  dus  pour  I’inexecution  de  I’obligation  * * * ou  pour 

retard  dans  I’execution”  (Duranton,  Droit  frangais,  X,  p.  470,  Aubry 
et  Rau,  Droit  Civil  1871,  IV,  p.  99,  Bemey,  De  la  demeure,  etc., 
Lausanne,  1886,  p.  62 ; Windscheid,  Lehrbueh  des  Pandektenrechts, 
1879,  p.  99,  Demolombe,  X,  p.  49;  Larombiere  I,  art.  1139,  N°.  22, 
etc. ) . 

Entre  le  Gouvernement  Imperial  Russe  et  la  Sublime-Porte,  il  y a 
done  eu  renonciation  au  interets  de  la  part  de  la  Russie,  puisque  son 
ambassade  a successivement  accepte  sans  discussion  ni  reserve  et  re- 
produit  a maintes  reprises  dans  sa  propre  correspondance  diploma- 
tique les  chiffres  du  reliquat  de  I’indemnite  comme  indentiques  aux 
chiffres  du  reliquat  en  capital. — En  d’autres  termes,  la  correspondance 
des  dernieres  annees  etablit  que  les  deux  Parties  ont  interprete,  en  fait, 
les  actes  de  1879  comme  impliquant  I’identite  entre  le  payement  du 
solde  du  capital  et  le  payement  du  solde  auquel  avaient  droit  les  indem- 
nitaires,  ce  qui  impliquait  I’abandon  des  interets  ou  dommages-interets 
moratoires. 

Le  Gouvernement  Imperial  Russe  ne  p>eut,  une  fois  le  capital  de  Tin- 
demnite  integralement  verse  ou  mis  a sa  disposition,  revenir  valable- 
ment  d’une  fagon  unilaterale  sur  une  interpretation  acceptee  et  prati- 
quee  en  son  nom  par  son  ambassade. 

Ill 

En  Conclusion 

Le  Tribunal  arbitral,  se  basant  sur  les  observations  de  droit  et  de 
fait  qui  precedent,  est  d’avis 

qu’en  principe,  le  Gouvernement  Imperial  Ottoman  etait  tenu, 
vis-a-vis  du  Gouvernement  Imperial  de  Russie,  a des  indemnites  mora- 
toires a partir  du  31  decembre  1890/12  janvier  1891,  date  de  la  recep- 
tion d’une  mise  en  demeure  explicite  et  reguliere, 

mais  que,  de  fait,  le  benefice  de  cette  mise  en  demeure  ayant  cesse 
pour  le  Gouvernement  Imperial  de  Russie  par  suite  de  la  renonciation 
subsequente  de  son  ambassade  a Constantinople,  le  Gouvernement  Im- 
perial Ottoman  n’est  pas  tenu  ajourd’hui  de  lui  payer  des  dommages- 


THE  RUSSIAN  INDEMNITY  CASE 


551 


interets  a raison  des  dates  auxquelles  a ete  effectue  le  payement  des 
indemnites, 

et,  en  consequence, 

Arrete 

il  est  repondu  negativement  a la  question  posee  au  chiffre  1 de  I’ar- 
ticle  3 du  Compromis  et  ainsi  congue : “Oui  ou  non,  le  Gouvernement 
Imperial  Ottoman  est-il  tenu  de  payer  aux  indemnitaires  russes  des 
dommages-interets  a raison  des  dates  auxquelles  ledit  Gouvernement 
a precede  au  payement  des  indemnites  fixees  en  execution  de  I’article 
5 du  traite  du  27  janvier/8  fevrier  1879,  ainsi  que  du  Protocole  de 
meme  date”? 

Fait  a La  Haye,  dans  I’hotel  de  la  Cour  Permanente  d’Arbitrage, 
le  11  novembre  1912. 

Le  President:  Lardy 

Le  Secretaire  general:  Michiels  van  Verduynen 
Le  Secretaire:  Roell 


Agreement  for  Arbitration,  July  22/August  1910J 

Le  Gouvernement  Imperial  Russe  et  le  Gouvernement  Imperial  Otto- 
man, cosignataires  de  la  Convention  de  La  Haye  du  18  octobre  1907 
pour  le  reglement  pacifique  des  conflits  internationaux : 

Considerant  les  dispositions  de  TArticle  5 du  Traite  signe  a Con- 
stantinople entre  la  Russie  et  la  Turquie,  le  27  janvier/8  fevrier  1879, 
ainsi  congu : 

“Les  reclamations  des  sujets  et  institutions  russes  en  Turquie  a 
titre  d’indemnite  pour  les  dommages  subis  pendant  la  guerre  seront 
payees  a mesure  qu’elles  seront  examinees  par  I’Ambassade  de  Russie 
a Constantinople  et  transmises  a la  Sublime  Porte” 

“La  totalite  de  ces  reclamations  ne  pourra  en  aucun  cas  depasser  le 
chiffre  de  26,750,000  francs” 

“Le  terme  d’une  annee  apres  I’echange  des  ratifications  est  fixe 
comme  date  a partir  de  laquelle  les  reclamations  pourront  etre  pre- 
sentees a la  Sublime  Porte,  et  celui  de  deux  ans  comme  date  apres 
laquelle  les  reclamations  ne  seront  plus  admises” ; 

Considerant  I’explication  additionelle  inseree  au  Protocole  de  meme 
date  portant : 

“Quant  au  terme  d’une  annee  fixe  par  cet  Article  comme  date  a 
partir  de  laquelle  les  reclamations  pourront  etre  presentees  a la 
Sublime  Porte,  il  est  entendu  qu’une  exception  y sera  faite  en  faveur 
de  la  reclamation  de  I’Hopital  Russe  s’elevant  a la  somme  de  11,200 
livres  sterlings” ; 

Considerant  qu’un  desaccord  s’est  eleve  entre  le  Gouvernement  Im- 
perial Russe  et  le  Gouvernement  Imperial  Ottoman  relativement  aux 
consequences  de  droit  resultant  des  dates  auxquelles  de  Gouvernement 


^Official  report,  p.  5. 


552 


ORIGINAL  TEXTS 


Imperial  Ottoman  a effectue,  sur  les  montants  des  indemnites  reguliere- 
ment  presentees  en  execution  dudit  Article  5,  les  payements  ci-apres, 
savoir : 


livr.  turq.  pi.  par. 


En  1884  50,000  — — 

En  1889  50,000  — — 

En  1893  75,000  — — 

En  1894  50,000  — — 

En  1902  42,438  67 


Considerant  que  le  Gouvemement  Imperial  Russe  soutient  que  le 
Gouvemement  Imperial  Ottoman  est  responsable  de  dommages-interets 
a regard  des  indemnitaires  russes  pour  le  retard  apporte  au  reglement 
de  sa  dette ; 

Considerant  que  le  Gouvemement  Imperial  Ottoman  conteste,  tant 
en  fait  qu’en  droit,  le  bien-fonde  de  la  pretention  du  Gouvemement 
Imperial  Russe; 

Considerant  que  le  litige  n’a  pu  etre  regie  par  la  voie  diplomatique ; 

Et  ayant  resolu,  conformement  aux  stipulations  de  ladite  Conven- 
tion de  La  Haye,  de  terminer  ce  differend  en  soumettant  la  question  a 
un  Arbitrage ; 

Ont,  a cet  effet,  autorise  leurs  Representants  ci-dessous  designes, 
savoir : 

pour  la  Russie, 

Son  Excellence  Monsieur  Tcharykow,  Ambassadeur  de  Sa  Majeste 
I’Empereur  de  Russie  a Constantinople ; 

pour  la  Turquie, 

Son  Excellence  Rifaat  Pacha,  Ministre  des  Affaires  etrangeres, 

A conclure  le  Compromis  suivant : 

Article  Premier 

Les  Puissances  en  litige  decident  que  le  Tribunal  Arbitral  auquel  la 
question  sera  soumise  en  dernier  ressort  sera  compose  de  cinq  mem- 
bres,  lesquels  seront  designes  de  la  maniere  suivante : 

Chaque  Partie,  aussitot  que  possible,  et  dans  un  delai  qui  n’excedera 
pas  deux  mois  a partir  de  la  date  de  ce  Compromis,  devra  nommer 
deux  Arbitres,  et  les  quatre  Arbitres  ainsi  designes  choisiront  ensemble 
un  Sur-Arbitre.  Dans  le  cas  ou  les  quatre  Arbitres  n’aurant  pas,  dans 
le  delai  de  deux  mois  apres  leur  desig^iation,  choisi  a I’unanimite  ou  a 
la  majorite  un  Sur-Arbitre,  le  choix  du  Sur-Arbitre  est  confie  a une 
Puissance  tierce  designee  de  commun  accord  par  les  Parties.  Si,  dans 
un  delai  de  deux  autres  mois,  I’accord  ne  s’etablit  pas  a ce  sujet, 
chaque  Partie  designe  une  Puissance  differente  et  le  choix  du  Sur- 
Arbitre  est  fait  de  concert  par  les  Puissances  ainsi  designees. 

Si,  dans  un  delai  de  deux  autres  mois,  ces  deux  Puissances  n’ont 
pu  tomber  d’accord,  chacune  d’elles  presente  deux  candidats  pris  sur 
la  liste  des  membres  de  la  Cour  Permanente  en  dehors  des  membres 


THE  RUSSIAN  INDEMNITY  CASE 


553 


de  ladite  Cour  designes  par  ces  deux  Puissances  ou  par  les  Parties,  et 
n’etant  les  nationaux  ni  des  uns  ni  des  autres.  Ces  candidats  ne  pour- 
ront,  en  plus,  appartenir  a la  nationalite  des  Arbitres  nommes  par  les 
Parties  dans  le  present  Arbitrage.  Le  sort  determine  lequel  des  can- 
didats ainsi  presentes  sera  le  Sur-Arbitre. 

Le  tirage  au  sort  sera  effectue  par  les  soins  du  Bureau  International 
de  la  Cour  Permanente  de  La  Haye. 

Art.  2 

Les  Puissances  en  litige  se  feront  representer  aupres  du  Tribunal 
Arbitral  par  des  agents,  conseils  ou  avocats,  en  conformite  desprevi- 
sions  de  I’Article  62  de  la  Convention  de  La  Haye  de  1907  pour  le 
reglement  pacifique  des  conflits  intemationaux. 

Ces  agents,  conseils  ou  avocats  seront  designes  par  les  Parties  a 
temps  pour  que  le  fonctionnement  de  I’Arbitrage  ne  subisse  aucun 
retard. 

Art.  3 

Les  questions  en  litige  et  sur  lesquelles  les  Parties  demandent  au 
Tribunal  Arbitral  de  prononcer  une  decisions  definitive  sont  les 
suivantes : 

I.  Oui  ou  non,  le  Gouvernement  Imperial  Ottoman  est-il  tenu  de 
payer  aux  indemnitaires  russes  des  dommages-interets  a raison  des 
dates  auxquelles  ledit  Gouvernement  a procede  au  payement  des  in- 
demnites  fixees  en  execution  de  I’article  5 du  Traite  du  27  janvier/ 
8 fevrier  1879,  ainsi  que  du  Protocole  de  meme  date? 

II.  En  cas  de  decision  affirmative  sur  la  premiere  question,  quel 
serait  le  montant  de  ces  dommages-interets? 

Art.  4 

Le  Tribunal  Arbitral,  tme  fois  constitue,  se  reunira  a La  Haye  a une 
date  qui  sera  fixee  par  les  Arbitres,  et  dans  le  delai  d’un  mois  a 
partir  de  la  nomination  du  Sur-Arbitre.  Apres  le  reglement — en  con- 
formite avec  le  texte  et  I’esprit  de  la  Convention  de  La  Haye  de  1907 — 
de  toutes  les  questions  de  procedure  qui  pourraient  surgir  et  qui  ne 
serai ent  pas  prevues  par  le  present  Compromis,  ledit  Tribunal  ajournera 
sa  prochaine  seance  a la  date  qu’il  fixera. 

Toutefois,  il  reste  convenue  que  le  Tribunal  ne  pourra  ouvrir  les 
debats  sur  les  questions  en  litige  ni  avant  les  deux  mois,  ni  plus  tard 
que  les  trois  mois  qui  suivront  la  remise  du  Contre-Memoire  ou  de  la 
Contre-Replique  prevus  par  Tarticle  6 et  eventuellement  des  conclu- 
sions stipulees  a I’article  8. 

Art.  5 

La  procedure  arbitrale  comprendra  deux  phases  distinctes : I’instruc- 
-tion  ecrite  et  les  debats  qui  consisteront  dans  le  developpement  oral  des 
moyens  des  Parties  devant  le  Tribunal. 

La  seule  langue  dont  fera  usage  le  Tribunal  et  dont  I’emploi  sera 
autorise  devant  lui  sera  la  langue  frangaise. 


554 


ORIGINAL  TEXTS 


Art.  6 

Dans  le  delai  de  huit  mois  au  plus  apres  la  date  du  present  Com- 
promis,  le  Gouvernement  Imperial  Russe  devra  remettre  a chacun  des 
membres  du  Tribimal  Arbitral,  en  un  exemplaire,  et  au  Gouvernement 
Imperial  Ottoman,  en  dix  exemplaires,  les  copies  completes,  ecrites  ou 
imprimees,  de  son  Memoire  contenant  toutes  pieces  a I’appui  de  sa 
demande  et  pouvant  se  referer  aux  deux  questions  visees  par 
I’article  3. 

Dans  un  delai  de  huit  mois  au  plus  tard  apres  cette  remise,  le 
Gouvernement  Imperial  Ottoman  devra  remettre  a chacun  des  membres 
du  Tribunal,  ainsi  qu’au  Gouvernement  Imperial  Russe,  en  autant 
d’exemplaires  que  ci-dessus,  les  copies  completes,  manuscrites  ou  im- 
primees, de  son  Contre-Memoire,  avec  toutes  pieces  a I’appui,  mais 
pouvant  se  bomer  a la  question  N°.  I de  I’article  3. 

Dans  de  delai  d’un  mois  apres  cette  remise,  le  Gouvernement  Im- 
j>erial  Russe  notifiera  au  President  du  Tribunal  Arbitral  s’il  a I’intention 
de  presenter  une  Replique.  Dans  ce  cas,  il  aura  un  delai  de  trois  mois 
au  plus,  a compter  de  cette  notification,  pour  communiquer  ladite 
Replique  dans  les  memes  conditions  que  le  Memoire.  Le  Gouverne- 
ment Imperial  Ottoman  aura  alors  un  delai  de  quatre  mois,  a compter 
de  cette  communication,  pour  presenter  sa  Contre-Replique,  dans  les 
memes  conditions  que  le  Contre-Memoire. 

Les  delais  fixes  par  le  present  article  pourront  etre  prolonges  de 
commun  accord  par  les  Parties,  ou  par  le  Tribunal,  quand  il  le  juge 
necessaire,  pour  arriver  a une  decision  juste. 

Mais  le  Tribunal  ne  prendra  pas  en  consideration  les  Memoires, 
Contre-Memoires  ou  autres  communications  qui  lui  seront  presentees 
par  les  Parties  apres  Texpiration  du  dernier  delai  par  lui  fixe. 

Art.  7 

Si,  dans  les  memoires  ou  autres  pieces  echanges,  I’une  ou  I’autre 
Partie  s’est  referee  ou  a fait  allusion  a un  document  ou  papier  en  sa 
possession  exclusive,  dont  elle  n’aura  pas  joint  la  copie,  elle  sera  tenue, 
si  I’autre  Partie  le  demande,  de  lui  en  donner  la  copie,  au  plus  tard 
dans  les  trente  jours. 

Art.  8 

Dans  le  cas  ou  le  Tribunal  Arbitral  aurait  affirmativement  statue 
sur  la  question  posee  au  N°.  I de  I’article  3,  il  devra,  avant  d’aborder 
I’examen  du  N°.  II  du  meme  article,  donner  aux  Parties  de  nouveaux 
delais  no  pouvant  etre  inferieurs  a trois  mois  chacun,  pour  presenter  et 
echanger  leurs  conclusions  et  arguments  a I’appui. 

Art.  9 

Les  decisions  du  Tribunal  sur  la  premiere,  et  eventuellement  sur  la 
seconde  question  en  litige,  seront  prononcees,  autant  que  possible,  dans 
le  delai  d’un  mois  apres  la  cloture  par  le  President  des  debats  relatifs 
a chacune  de  ces  questions. 


THE  RUSSIAN  INDEMNITY  CASE 


555 


Art.  10 

Le  jugement  du  Tribunal  Arbitral  sera  definitif  et  devra  etre  execute 
strictement  et  sans  aucun  retard. 


Art.  11 


Chaque  Partie  supporte  ses  propres  frais  et  une  parte  egale  des  frais 
du  Tribunal. 


Art.  12 


En  tout  ce  qui  n’est  pas  prevu  par  le  present  Compromis,  les  stipula- 
tions de  la  Convention  de  La  Haye  de  1907  pour  le  reglement  pacifique 
des  Conflits  intemationaux  seront  appliquees  a cet  Arbitrage,  a I’ex- 
ception,  toutefois,  des  articles  dont  I’acceptation  a ete  reservee  par  le 
Gouvernement  Imperial  Ottoman. 


Fait  a Constantinople,  le  22  juillet/4  aout  1910. 

(Signe)  : N 

(Signe) 


Tcharykow 
Rifaat 


THE  CARTHAGE  CASE 


Award  of  the  Tribunal,  May  6,  1913^ 

Considerant  que,  par  un  Accord  du  26  janvier  1912  et  par  un  Com- 
promis  du  6 mars  suivant,  le  Gouvemement  de  la  Republique  Fran- 
<;aise  et  le  Gouvemement  Royal  Italien  sont  convenus  de  soumettre  a 
un  Tribunal  Arbitral  compose  de  cinq  Membres  la  solution  des  ques- 
tions suivantes : 

1®.  Les  autorites  navales  italiennes  etaient-elles  en  droit  de  proceder 
comme  elles  ont  fait  a la  capture  et  a la  saisie  momentanee  du  vapeur 
postal  frangais  “Carthage”? 

2®.  Quelles  consequences  p^uniaires  ou  autres  doivent  resulter  de 
la  solution  donnee  a la  question  pr^edente? 

Considerant  qu’en  execution  de  ce  Compromis  les  deux  Gouveme- 
ment ont  choisi,  d’un  commun  accord,  pour  constituer  le  Tribunal  Ar- 
bitral les  Membres  suivants  de  la  Cour  Permanente  d’Arbitrage ; 

Son  Excellence  Monsieur  Guido  Fusinato,  Docteur  en  droit,  Mi- 
nistre  d’Etat,  ancien  Ministre  de  ITnstruction  publique,  Professeur 
honoraire  de  droit  international  a I’Universite  de  Turin,  Depute,  Con- 
seiller  d’Etat; 

Monsieur  Knut  Hjalmar  Leonard  de  Hammarskjold,  Docteur  en 
droit,  ancien  Ministre  de  la  Justice,  ancien  Ministre  des  Cultes  et  de 
ITnstruction  publique,  ancien  Envoye  extraordinaire  et  Ministre  pleni- 
potentiaire  a Copenhague,  ancien  President  de  la  Cour  d’appel  de 
Jdnkdping,  ancien  Professeur  a la  Faculte  de  droit  d’Upsal,  Gouvemeur 
de  la  province  d’Upsal ; 

Monsieur  Kriege,  Docteur  en  droit,  Conseiller  actuel  intime  de  Le- 
gation et  Directeur  au  Departement  des  Affaires  Etrangeres,  Pleni- 
potentiaire  au  Conseil  Federal  Allemand ; 

Monsieur  Louis  Renault,  Ministre  plenipotentiaire,  Membre  de  I’ln- 
stitut,  Professeur  a la  Faculte  de  droit  de  I’Universite  de  Paris  et  a 
I’Ecole  libre  des  sciences  politiques,  Jurisconsulte  du  Ministere  des 
Affaires  Etrangeres ; 

Son  Excellence  le  Baron  Michel  de  Taube.  Docteur  en  droit.  Adjoint 
du  Ministre  de  ITnstmction  publique  de  Russie,  Conseiller  d’Etat 
actuel ; 

que  les  deux  Gouvemements  ont,  en  meme  temps,  designe  Monsieur 
de  Hammarskjold  pour  remplir  les  functions  de  President. 

Considerant  que,  en  execution  du  Compromis  du  6 mars  1912,  les 
Memoires  et  Contre-Memoires  ont  ete  dument  echanges  entre  les 
Parties  et  communiques  aux  Arbitres ; 

Considerant  que  le  Tribunal,  constitue  comme  il  est  dit  ci-dessus, 
s’est  reuni  a La  Haye  le  31  mars  1913; 


‘Official  report,  p.  112. 


THE  CAKTHAGE  CASE 


557 


que  les  deux  Gouvernements  out  respectivement  designe  comme 
Agents  et  Conseils, 

le  Gouvemement  de  la  Republique  Fran^aise: 

Monsieur  Henri  Fromageot,  Avocat  a la  Cour  d’appel  de  Paris, 
Jurisconsulte  suppleant  du  Ministere  des  Alfaires  Etrangeres,  Con- 
seiller  du  Departement  de  la  Marine  en  droit  international,  Agent; 

Monsieur  Andre  Hesse,  Avocat  a la  Cour  d’appel  de  Paris,  Membre 
de  la  Chambre  des  Deputes,  Conseil ; 

Le  Gouvemement  Royal  Italien: 

Monsieur  Arturo  Ricci-Busatti,  Envoye  extraordinaire  et  Ministre 
plenipotentiaire.  Chef  du  Bureau  du  Contentieux  et  de  la  Legislation 
au  Ministere  Royal  des  Affaires  Etrangeres,  Agent; 

Monsieur  Dionisio  Anzilotti,  Professeur  de  droit  international  a 
rUniversite  de  Rome,  Conseil. 

Considerant  que  les  Agents  des  Parties  ont  presente  au  Tribunal 
les  conclusions  suivantes,  savoir, 

I’Agent  du  Gouvemement  de  la  Republique  Frangaise: 

Plaise  au  Tribunal, 

Sur  la  premiere  question  posee  par  le  Compromis, 

Dire  que  les  autorites  navales  italiennes  n’etaient  pas  en  droit  de 
proceder  comme  elles  ont  fait  a la  capture  et  a la  saisie  momentanee  du 
vapeur  postal  frangais  “Carthage” ; 

En  consequence  et  sur  la  seconde  question, 

Dire  que  le  Gouvemement  Royal  Italien  sera  tenu  de  verser  au 
Gouvemement  de  la  Republique  Frangaise  a titre  de  dommages- 
interets : 

1°.  La  somme  de  un  franc  pour  atteinte  portee  au  pavilion  frangais ; 

2°.  La  somme  de  cent  mille  francs  pour  reparation  du  prejudice 
moral  et  politique  resultant  de  I’inobservation  du  droit  commun  inter- 
national et  des  conventions  reciproquement  obligatoires  pour  I’ltalie 
comme  pour  la  France ; 

3°.  La  somme  de  cinq  cent  soixante-seize  mille  sept  cent  trente-huit 
francs  vingt-trois  centimes,  montant  total  des  pertes  et  dommages 
reclames  par  les  particuliers  interesses  au  navire  et  a son  expedition ; 

Dire  que  la  somme  susdite  de  cent  mille  francs  sera  versee  au 
Gouvemement  de  la  Republique  pour  le  benefice  en  etre  attribue  a telle 
oeuvre  ou  institution  d’interet  international  qu’il  plaira  au  Tribunal 
d’indiquer ; 

Subsidiairement  et  dans  le  cas  ou  le  Tribunal  ne  se  croirait  pas,  des 
a present,  suffisamment  eclaire  sur  le  bien  fonde  des  reclamations  par- 
ticulieres, 

Dire  que,  par  tel  ou  tels  de  ses  membres  qu’il  lui  plaira  de  com- 
meftre  a cet  effet,  il  sera,  en  presence  des  Agents  et  Conseils  des  deux 
Gouvernements,  procede,  en  la  Chambre  de  ses  deliberations,  a I’examen 
de  chacune  desdites,  reclamations  particulieres ; 

Dans  tons  les  cas,  et  par  application  de  I’article  9 du  Compromis, 

Dire  que,  a I’expiration  d’un  delai  de  trois  mois  a compter  du  jour 


558 


ORIGINAL  TEXTS 


de  la  sentence,  les  sommes  mises  a la  charge  du  Gouvemement  Royal 
Italien  et  non  encore  versees  seront  productives  d’interets  a raisen 
de  quatre  pour  cent  par  an. 

Et  I’Agent  du  Gouvemement  Royal  Italien : 

Plaise  au  Tribunal, 

Sur  la  premiere  question  posee  par  le  Compromis, 

Dire  et  juger  que  les  autorites  navales  italiennes  etaient  pleinement 
en  droit  de  proceder  comine  elles  ont  fait  a la  capture  et  a la  saisie 
momentanee  du  vapeur  postal  frangais  “Carthage”; 

En  consequence  et  sur  la  seconde  question. 

Dire  et  juger  qu’aucune  consequence  pecuniaire  ou  autre  ne  saurait 
resulter,  a la  charge  du  Gouvemement  Royal  Italien,  de  la  capture  et 
de  la  saisie  momentanee  du  vapeur  postal  frangais  “Carthage” ; 

Dire  que  le  Gouvemement  Frangais  sera  tenu  de  verser  au  Gouverne- 
ment  Italien  la  somme  de  deux  mille  soixante-douze  francs  vingt-cinq 
centimes,  montant  des  frais  occasionnes  par  la  saisie  du  “Carthage”; 

Dire  que,  a I’expiration  d’un  delai  de  trois  mois  a compter  du  jour 
de  la  sentence,  la  somme  mise  a la  charge  du  Gouvemement  de  la 
Republique  Frangaise  sera,  si  elle  n’a  pas  encore  ete  versee,  pro- 
ductive d’interets  a raison  de  quatre  pour  cent  par  an. 

Considerant  que,  apres  que  le  Tribunal  eut  entendu  les  exposes 
oraux  des  Agents  des  Parties  et  les  explications  qu’ils  lui  ont  foumies 
sur  sa  demande,  les  debats  ont  ete  dument  declares  clos. 

En  fait: 

Considerant  que  le  vapeur  postal  frangais  “Carthage,”  de  la  Com- 
pagnie  Generale  Transatlantique,  au  cours  d’un  voyage  regulier  entre 
Marseille  et  Tunis,  fut  arrete,  le  16  janvier  1912,  a 6 heures  30  du 
matin,  en  pleine  mer,  a 17  milles  des  cotes  de  Sardaigne,  par  le  contre- 
torpilleur  de  la  Marine  Royale  Italienne  “Agordat” ; 

que  le  commandant  de  1’“ Agordat,”  ayant  constate  le  presence  a 
bord  du  “Carthage”  d’un  aeroplane  appartenant  au  sieur  Duval, 
aviateur  frangais,  et  expedie  a Tunis  a I’adresse  de  celui-ci,  a declare 
au  capitaine  du  “Carthage”  que  I’aeroplane  en  question  etait  considere 
par  le  Gouvemement  Italien  comme  contrebande  de  guerre ; 

que,  le  transbordement  de  I’aeroplane  n’ayant  pu  etre  opere,  le 
capitaine  du  “Carthage”  a regu  I’ordre  de  suivre  1’  “Agordat”  a Cagliari, 
ou  il  a ete  retenu  jusqu’au  20  janvier; 

En  droit: 

Considerant  que,  d’apres  les  principes  universellement  admis,  un 
batiment  de  guerre  belligerant  a,  en  these  generale  et  sans  conditions 
particulieres,  le  droit  d’arreter  en  pleine  mer  un  navire  de  commerce 
neutre  et  de  proceder  a la  visite  pour  s’assurer  s’il  observe  les  regies 
sur  la  neutralite,  specialement  au  point  de  vue  de  la  contrebande ; 

Considerant,  d’autre  part,  que  la  legitimite  de  tout  acte  depassant  les 
limites  de  la  visite  depend  de  I’existence,  soit  d’un  trafic  de  contre- 
bande, soit  de  motifs  suffisants  pour  y croire. 


THE  CARTHAGE  CASE 


559 


que,  a cet  egard,  il  faut  s’en  tenir  aux  motifs  d’ordre  juridique; 

Considerant  que,  dans  I’espece,  le  “Carthage”  n’a  pas  ete  seulement 
arrete  et  visite  par  r“Agordat,”  mais  aussi  amene  a Cagliari,  sequestre 
et  retenu  un  certain  temps,  apres  lequel  il  a ete  relaxe  par  voie  adminis- 
trative ; 

Considerant  que,  le  but  poursuivi  par  les  mesures  prises  contre  le 
paquebot-p>oste  frangais  etait  d’empecher  le  transport  de  I’aeroplane 
appartenant  au  sieur  Duval,  et  embarque  sur  le  “Carthage”  a I’adresse 
de  ce  meme  Duval,  a Tunis ; 

que  cet  aeroplane  etait  considere  par  les  autorites  italiennes  comme 
constituant  de  la  contrebande  de  guerre,  tant  par  sa  nature  que  par  sa 
destination  qui,  en  realite,  aurait  ete  pour  les  forces  ottomanes  en 
Tripolitaine; 

Considerant,  pour  ce  qui  concerne  la  destination  hostile  de  Taero- 
plane,  element  essentiel  de  la  saisissabilite, 

que  les  renseignements  possedes  par  les  autorites  italiennes  etaient 
d’une  nature  trop  generale  et  avaient  trop  peu  de  connexite  avec 
I’aeroplane  dont  il  s’agit,  pour  constituer  des  motifs  juridiques  suffi- 
sants  de  croire  a une  destination  hostile  quelconque  et,  par  consequent, 
pour  justifier  la  capture  du  navire  qui  transportait  I’aeroplane ; 

que  la  depeche  de  Marseille,  relatant  certains  propos  tenus  par  le 
mecanicien  du  sieur  Duval,  n’est  parvenue  aux  autorites  italiennes 
qu’apres  que  le  “Carthage”  avait  ete  arrete  et  conduit  a Cagliari  et 
n’a  pu,  par  suite,  motiver  ces  mesures ; que,  d’ailleurs,  elle  n’aurait  pu, 
dans  tons  les  cas,  foumir  des  motifs  suffisants  dans  le  sens  de  ce  qui 
a ete  dit  precedemment ; 

Considerant  que,  ce  resultat  acquis,  il  n’importe  pas  au  Tribunal  de 
rechercher  si  I’aeroplane  devait  ou  non  par  sa  nature  etre  compris  dans 
les  articles  de  la  contrebande,  soit  relative,  soit  absolue,  pas  plus  que 
d’examiner  si  la  theorie  du  voyage  continu  serait  ou  non  applicable 
dans  I’espece; 

Considerant  que,  le  Tribunal  trouve  egalement  superflu  d’examiner 
s’il  y a eu,  lors  des  mesures  prises  contre  le  “Carthage,”  des  irregularites 
de  forme  et  si,  en  cas  d’affirmative,  ces  irregularites  etaient  de  nature  a 
vicier  des  mesures  autrement  legitimes  ; 

Considerant  que,  les  autorites  italiennes  n’ont  demande  la  remise  du 
port  postal  que  pour  le  faire  parvenir  a destination  le  plus  tot  possible, 

que  cette  demande,  qui  parait  avoir  ete  d’abord  mal  comprise  par  le 
capitaine  du  “Carthage,”  etait  conforme  a la  Convention  du  18  octobre 
1907  relative  a certaines  restrictions  a I’exercice  du  droit  de  capture, 
qui,  d’ailleurs,  n’etait  pas  ratifiee  par  les  belligerants. 

Sur  la  demande  tendant  a faire  condamner  le  Gouvemement  Royal 
Italien  a verser  au  Gouvemement  de  la  Republique  Frangaise  a titre  de 
dommages-interets : 

1”.  la  somme  de  un  franc  pour  atteinte  portee  au  pavilion  frangais ; 

2®.  la  somme  de  cent  mille  francs  pour  reparation  du  prejudice  moral 
et  politique  resultant  de  I’inobservation  du  droit  commun  international 
et  des  conventions  reciproquement  obligatoires  pour  I’ltalie  comme  pour 
la  France, 


560 


ORIGINAL  TEXTS 


Considerant  que,  pour  le  cas  ou  une  Puissance  aurait  manque  a 
remplir  ses  obligations,  soit  generales,  soit  speciales,  vis-a-vis  d’une 
autre  Puissance,  la  constatation  de  ce  fait,  surtout  dans  une  sentence 
arbitrale,  constitue  deja  une  sanction  serieuse; 

que  cette  sanction  est  renforcee,  le  cas  echeant,  par  le  paiement  de 
dommages-interets  pour  les  pertes  materielles ; 

que,  en  these  generale  et  abstraction  faite  de  situations  particulieres, 
ces  sanctions  paraissent  suffisantes ; 

que,  egalement  en  these  generale,  I’introduction  d’une  autre  sanction 
pecuniaire  parait  etre  superflue  et  depasser  le  but  de  la  juridiction  Inter- 
nationale ; 

Considerant  que,  par  application  de  ce  qui  vient  d’etre  dit,  les  cir- 
constances  de  la  cause  presente  ne  sauraient  motiver  une  telle  sanction 
supplementaire ; que,  sans  autre  examen,  il  n’y  a done  pas  lieu  de 
donner  suite  a la  demande  susmentionnee. 

Sur  la  demande  de  I’Agent  franqais  tendant  a faire  condamner  le 
Gouvemement  Italien  a payer  la  somme  de  cinq  cent  soixante-seize 
mille  sept  cent  trente-huit  francs  vingt-trois  centimes,  montant  total 
des  pertes  et  dommages  reclames  par  les  particuliers  interesses  au 
tiavire  et  a son  expedition, 

Considerant  que,  la  demande  d’une  indemnite  est,  en  principe, 
justifiee; 

Considerant  que,  le  Tribunal,  apres  avoir  entendu  les  explications 
concordantes  de  deux  de  ses  membres  charges  par  lui  de  proceder  a une 
enquete  sur  lesdites  reclamations,  a evalue  a soixante-quinze  mille 
francs  le  montant  de  I’indemnite  due  a la  Compagnie  generale  trans- 
atlantique,  a vingt-cinq  mille  francs  le  montant  de  I’indemnite  due  a 
I’aviateur  Duval  et  consorts,  enfin  a soixante  mille  francs  I’indemnite 
due  a I’ensemble  des  passagers  et  chargeurs,  soit  a cent  soixante  mille 
francs  la  somme  totale  a payer  par  le  Gouvemement  Italien  au  Gou- 
vernement  Frangais. 

Par  ces  Motifs, 

Le  Tribunal  Arbitral  declare  et  prononce  ce  qui  suit: 

Les  autorites  navales  italiennes  n’etaient  pas  en  droit  de  proceder 
comme  elles  ont  fait  a la  capture  et  a la  saisie  momentanee  du  vapeur 
postal  frangais  “Carthage.” 

Le  Gouvemement  Royal  Italien  sera  tenu,  dans  les  trois  mois  de 
la  presente  sentence,  de  verser  au  Gouvemement  de  la  Republique  Fran- 
gaise  la  somme  de  cent  soixante  mille  francs,  montant  des  pertes  et 
dommages  eprouves,  a raison  de  la  capture  et  de  la  saisie  du  “Car- 
thage,” par  les  particuliers  interesses  au  navire  et  a son  expedition. 

II  n’y  a pas  lieu  de  donner  suite  aux  autres  reclamations  contenues 
dans  les  conclusions  des  deux  Parties. 

Fait  a La  Haye,  dans  I’Hotel  de  la  Cour  Permanente  d’Arbitrage, 
le  6 mai  1913. 

Le  President:  Hj.  L.  Hammarskjold 
Le  Secretaire  general:  Michiels  van  Verduynen 
Le  Secretaire:  Roell 


THE  CARTHAGE  CASE 


561 


Agreement  for  Arbitration,  March  6,  1912^ 

Le  Gouvemement  de  la  Republique  Frangaise  et  le  Gouvernement 
Royal  Italian,  s’etant  mis  d’accord  le  26  janvier  1912  par  application 
de  la  Convention  d’arbitrage  du  25  decembre  1903,  renouvelee  le  24 
decembre  1908  pour  confier  a un  Tribunal  d’arbitrage  I’examen  de  la 
capture  et  de  la  saisie  momentanee  du  vapeur  postal  frangais  “Car- 
thage” par  les  autorites  navales  italiennes,  ainsi  que  la  mission  de  se 
prononcer  sur  les  consequences  qui  en  derivent, 

Les  soussignes,  dument  autorises  a cet  eflfet,  sont  convenus  du  Com- 
promis  suivant : 

Article  1 

Un  Tribunal  arbitral,  compose  comme  il  est  dit  ci-apres,  est  charge 
de  resoudre  les  questions  suivantes; 

1°.  Les  autorites  navales  italiennes  etaient-elles  en  droit  de  proceder 
comme  elles  ont  fait  a la  capture  et  a la  saisie  momentanee  du  vapeur 
postal  frangais  “Carthage”? 

2°.  Quelles  consequences  pecuniaires  ou  autres  doivent  resulter  de 
la  solution  donnee  a la  question  precedente? 

Article  2 

Le  Tribunal  sera  compose  de  cinq  Arbitres  que  les  deux  Gouveme- 
ments  choisiront  parmi  les  Membres  de  la  Cour  permanente  d’Arbitrage 
de  La  Haye,  en  designant  celui  d’entre  eux  qui  remplira  les  functions 
de  Surarbitre. 

Article  3 

A la  date  du  15  juin  1912,  chaque  Partie  deposera  au  Bureau  de  la 
Cour  permanente  d’Arbitrage  quinze  exemplaires  de  son  memoire,  avec 
les  copies  certifiees  conformes  de  tous  les  documents  et  pieces  qu’elle 
compte  invoquer  dans  la  cause. 

Le  Bureau  en  assurera  sans  retard  la  transmission  aux  Arbitres  et 
aux  Parties,  savoir  deux  exemplaires  pour  chaque  Arbitre,  trois  exem- 
plaires pour  la  Partie  adverse;  deux  exemplaires  resteront  dans  les 
archives  du  Bureau. 

A la  date  du  15  aout  1912,  chaque  Partie  deposera  dans  les  memes 
conditions  que  ci-dessus  son  contre-memoire  avec  les  pieces  a I’appui 
et  ses  conclusions  finales. 

Article  4 

Chacune  des  Parties  deposera  au  Bureau  de  la  Cour  permanente 
d’Arbitrage  de  La  Haye,  en  meme  temps  que  son  memoire  et  a titre 
de  provision,  une  somme  qui  sera  fixee  d’un  commun  accord. 

Article  5 

Le  Tribunal  se  reunira  a La  Haye,  sur  la  convocation  de  son  Presi- 
dent, dans  la  deuxieme  quinzaine  du  mois  de  septembre  1912. 


^OflBcial  report,  p.  5. 


562 


ORIGINAL  TEXTS 


Article  6 

Chaque  Partie  sera  representee  par  un  Agent  avec  mission  de  servir 
d’intermediaire  entre  elle  et  le  Tribunal. 

Le  Tribunal  pourra,  s’il  I’estime  necessaire,  demander  a Tun  ou  a 
I’autre  des  Agents  de  lui  fournir  des  explications  orales  ou  ecrites 
auxquelles  I’Agent  de  la  Partie  adverse  aura  le  droit  de  repondre. 

Article  7 

La  langue  fran^aise  est  la  langue  du  Tribunal.  Chaque  Partie  pourra 
faire  usage  de  sa  propre  langue. 

Article  8 

La  sentence  du  Tribunal  devra  etre  rendue  dans  le  plus  bref  delai 
possible  et  dans  tous  les  cas  dans  les  trente  jours  qui  suivront  la 
cloture  des  debats.  Toutefois,  ce  delai  pourra  etre  prolonge  a la  de- 
mande  du  Tribunal  et  du  consentement  des  Parties. 


Article  9 


Le  Tribunal  est  competent  pour  regler  les  conditions  d’execution  de 
sa  sentence. 


Article  10 


Pour  tout  ce  qui  n’est  pas  prevu  par  le  present  Compromis,  les  dis- 
positions de  la  Convention  de  La  Haye  du  18  octobre  1907  pour  le 
reglement  pacifique  des  conflits  intemationaux  seront  applicables  au 
present  Arbitrage. 

Fait  en  double  a Paris,  le  6 mars  1912. 

Signe : L.  Renault 

Signe:  G.  Fusinato 


Joint  Note  of  January  26,  1912,  concerning  the  Settlement  of  the 
"Carthage”  and  "Manoub<f"  Cases^ 

L’ambassadeur  de  France  et  le  ministre  des  Affaires  etrangeres 
dTtalie  ayant  examine  dans  I’esprit  le  plus  cordiel  les  circonstances  qui 
ont  precede  et  suivi  I’arret  et  la  visite  par  un  croiseur  italien  de  deux 
vapeurs  frangais  se  rendant  de  Marseille  a Tunis,  ont  ete  heureux  de 
constater,  d’un  commun  accord  et  avant  toute  autre  consideration, 
qu’il  n’en  resultait  de  la  part  d’aucun  des  deux  pays  aucune  intention 
contraire  aux  sentiments  de  sincere  et  constante  amite  qui  les  unissent. 

Cette  constatation  a amene  sans  difficulte  les  deux  gouvernements 
a decider: 

1°.  Que  les  questions  derivant  de  la  capture  et  de  I’arret  momen- 
lane  du  vapeur  Carthage,  seront  deferees  a Texamen  de  la  cour  d’arbi- 


'^Le  Memorial  Diplomatique,  January  28,  1912,  p.  57. 


THE  CARTHAGE  CASE 


563 


trage  de  La  Haye,  en  vertu  de  la  convention  d’arbitrage  franco- 
italienne  du  23  decembre  1903,  renouvelee  le  24  decembre  1908; 

2®.  Qu’en  ce  qui  concerne  la  saisie  du  vapeur  Manouba  et  des 
passagers  ottomans  qui  y etaient  embarques,  cette  operation  ayant  ete 
effectuee,  d’apres  le  gouvernement  italien,  en  vertu  des  droits  qu’il 
declare  tenir  des  principes  generaux  du  droit  international  et  de  I’arti- 
cle  47  de  la  declaration  de  Londres  de  1909,  les  circonstances  speciales 
dans  lesquelles  cette  operation  a ete  faite  et  les  consequences  qui  en 
decoulent  seront  egalement  soumises  a I’examen  de  la  haute  juridiction 
intemationale  instituee  a La  Haye;  que  dans  le  but  de  retablir  le 
statu  quo  ante  en  ce  qui  concerne  les  personnes,  les  passagers  ottomans 
saisis,  ces  derniers  seront  remis  au  consul  de  France  a Cagliari,  pour 
etre  reconduits  par  ses  soins  a leur  lieu  d’embarquement,  sous  la  re- 
sponsabilite  du  gouvernement  frangais,  qui  prendra  les  mesures  neces- 
saires  pour  empecher  que  les  passagers  ottomans  n’appartenant  pas 
au  “Croissant  Rouge,”  mais  a des  corps  combattants,  se  rendent  d’un 
port  frangais  en  Tunisie  ou  sur  le  theatre  des  operations  militaires. 


Agreement  of  April  4,  igi2,  supplementary  to  the  Agreements  for 
Arbitration  in  the  “Carthage’'  and  “Manouba”  Cases^ 

Le  Gouvernement  de  la  Republique  Frangaise  et  le  Gouvernement 
Royal  Italien  ayant  pris  connaissance  des  deux  Compromis,  etablis 
le  6 mars  1912  par  MM.  Louis  Renault  et  Fusinato,  en  vue  de  regler 
par  I’arbitrage  devant  la  Cour  de  la  Haye  les  incidents  relatifs  a la 
saisie  du  Carthage  et  a la  saisie  du  Manouba,  declarent  en  approuver 
les  termes  et  se  considerent  comme  lies  par  leur  texte; 

Ils  designent,  d’un  commun  accord,  pour  constituer  le  tribunal  arbi- 
tral les  membres  suivants  de  la  Cour  d’arbitrage  de  La  Haye: 

M.  Guido  Fusinato,  docteur  en  droit,  ancien  ministre  de  I’lnstruction 
Publique,  ancien  professeur  de  droit  international  a I’universite  de 
Turin,  depute,  conseiller  d’fitat; 

M.  Knut  Hjalmar  Leonard  de  Hammarskjold,  docteur  en  droit, 
ancien  ministre  de  la  Justice,  ancien  ministre  des  Cultes  et  de  I’lnstruc- 
tion  Publique,  ancien  envoye  extraordinaire  et  ministre  plenipoten- 
tiaire  a Copenhague,  ancien  president  de  la  Cour  d’appel  de 
Jdnkoping'  ancien  professeur  a la  faculte  de  droit  d’Upsal,  gouvemeur 
de  la  province  d’Upsal; 

M.  Kriege,  docteur  en  droit,  conseiller  intime  actual  de  legation, 
directeur  au  departement  des  Affaires  fitrangeres ; 

M.  Louis  Renault,  ministre  plenipotentiaire,  professeur  a la  faculte 
de  droit  de  Paris,  jurisconsulte  du  ministere  des  Affaires  Rtrangeres; 

M.  le  baron  Taube,  membre  permanent  du  Conseil  du  ministere  des 
Affaires  Ltrangeres,  professeur  de  droit  international  a I’Universite 
imperiale  de  Saint-Petersbourg,  conseiller  d’Ltat ; 

^Official  report,  Memoire  of  the  French  Republic,  p.  7,  note  2. 


564 


ORIGINAL  TEXTS 


dent  du  tribunal. 

M.  de  Hammarskjold  remplira  les  fonctions  de  Surarbitre  ou  Presi- 

Les  deux  Gouvemements  conviennent  de  fixer  a 3,000  florins  neer- 
landais  la  somme  a deposer  par  chacun  d’eux,  conformement  a I’article 
4 de  chaque  Compromis,  etant  entendu  que  ladite  somme  est  destinee 
a servir  de  provision  pour  toutes  les  affaires  dont  le  tribunal  arbitral 
ci-dessus  designe  sera  charge  de  connaitre. 

Les  deux  Gouvemements  se  reservent  la  faculte  de  modifier,  d’un 
commun  accord,  I’article  5 de  chacun  des  Compromis  en  ce  qui  touche 
la  date  de  la  reunion  du  tribunal  arbitral. 

Fait  a Paris,  le  4 avril  1912. 

(L.  S.)  Signer  R.  Poincare 
(L.  S.)  Signer  M.  Ruspoli 


THE  MANOUBA  CASE 


Award  of  the  Tribuml,  May  6,  1913^ 

Considerant  que,  par  un  Accord  du  26  janvier  1912  et  par  un  Com- 
promis  du  6 mars  suivant,  le  Gouvemement  de  la  Republique  Fran- 
qaise  et  le  Gouvemement  Royal  Italien  sont  convenus  de  soumettre  a 
un  Tribunal  Arbitral  compose  de  cinq  Membres  la  solution  des  ques- 
tions suivantes: 

1°.  Les  auto  rites  navales  italiennes  etaient-elles,  d’une  fagon  generale 
et  d’apres  les  circonstances  speciales  ou  Toperation  a ete  accomplie,  en 
droit  de  proceder  comme  elles  ont  fait  a la  capture  et  a la  saisie  mo- 
mentanee  du  vapeur  postal  frangais  “Manouba”  ainsi  qu’a  arrestation 
des  vingt-neuf  passagers  ottomans  qui  s’y  trouvaient  embarques? 

2°.  Quelles  consequences  pecuniaires  ou  autres  doivent  resulter  de 
la  solution  donnee  a la  question  precedente  ? 

Considerant  qu’en  execution  de  ce  Compromis  les  deux  Gouveme- 
ments  ont  choisi,  d’un  commun  accord,  pour  constituer  le  Tribunal 
Arbitral  les  Membres  suivants  de  la  Cour  Permanente  d’Arbitrage: 

Son  Excellence  Monsieur  Guida  Fusinato,  Docteur  en  droit,  Ministre 
d’Etat,  ancien  Ministre  de  ITnstruction  publique,  Professeur  honoraire 
de  droit  international  a TUniversite  de  Turin,  Depute,  Co.nseiller 
d’Etat ; 

Monsieur  Knut  Hjalmar  Leonard  de  Hammarskjdld,  Docteur  en 
droit,  ancien  Ministre  de  la  Justice,  ancien  Ministre  des  Cultes  et  de 
rinstruction  publique,  ancien  Envoye  extraordinaire  et  Ministre  plaii- 
potentiaire  a Copenhague,  ancien  President  de  la  Cour  d’appel  de 
Jonkoping,  ancien  Professeur  a la  Faculte  de  droit  d’Upsal,  Gou- 
vemeur  de  la  province  d’Upsal ; 

Monsieur  Kriege,  Docteur  en  droit,  Conseiller  actuel  intime  de  Le- 
gation et  Directeur  au  Departement  des  Affaires  Etrangeres,  Plenipo- 
tentiaire  au  Conseil  Federal  Allemand; 

Monsieur  Louis  Renault,  Ministre  plenipotentiaire,  Membre  de 
I’lnstitut,  Professeur  a la  Faculte  de  droit  de  I’Universite  de  Paris  et 
a.  I’Ecole  libre  des  sciences  politiques,  Jurisconsulte  du  Ministere  des 
Affaires  Etrangeres; 

Son  Excellence  le  Baron  Michel  de  Taube,  Docteur  en  droit.  Adjoint 
du  Ministre  de  I’lnstruction  publique  de  Russie,  Conseiller  d’Etat 
actuel ; 

que  les  deux  Gouvemements  ont,  en  meme  temps,  designe  Monsieur 
de  Hammarskjold  pour  remplir  les  fonctions  de  President. 

Considerant  que,  en  execution  du  Compromis  du  6 mars  1912,  les 
Memoires  et  Contre-Memoires  ont  ete  dument  echanges  entre  les 
Parties  et  communiques  aux  Arbitres; 


^Official  report,  p.  119. 


566 


ORIGINAL  TEXTS 


Considerant  que  le  Tribunal,  constitue  comme  il  est  dit  ci-dessus, 
s’est  reuni  a La  Haye  le  31  mars  1913; 

que  les  deux  Gouvernements  ont  respectivement  designe  comme 
Agents  et  Conseils, 

le  Gouvernement  de  la  Republique  Frangaise: 

Monsieur  Henri  Fromageot,  Avocat  a la  Cour  d’appel  de  Paris, 
_/urisconsulte  suppleant  du  Ministere  des  Affaires  Etrangeres,  Con- 
seiller  du  Departement  de  la  Marine  en  droit  international.  Agent ; 

Monsieur  Andre  Hesse,  Avocat  a la  Cour  d’appel  de  Paris,  Membre 
de  la  Chambre  des  Deputes,  Conseil ; 

Le  Gouvernement  Royal  Italien  : 

Monsieur  Arturo  Ricci-Busatti,  Envoye  extraordinaire  et  Ministre 
plenipotentiaire.  Chef  du  Bureau  du  Contentieux  et  de  la  Legislation 
au  Ministere  Royal  des  Affaires  Etrangeres,  Agent ; 

Monsieur  Dionisio  Anzilotti,  Professeur  de  droit  international  a 
rUniversite  de  Rome,  Conseil. 

Considerant  que  les  Agents  des  Parties  ont  presente  au  Tribunal  les 
conclusions  suivantes,  savoir, 

I’Agent  du  Gouvernement  de  la  Republique  Frangaise: 

Plaise  au  Tribunal, 

Sur  la  premiere  question  posee  par  le  Compromis, 

Dire,  et  juger  que  les  autorites  navales  italiennes  n’etaient  pas,  d’une 
faqon  generale  et  d’apres  les  circonstances  speciales  ou  I’operation  a 
ete  accomplie,  en  droit  de  proceder  comme  elles  ont  fait  a la  capture 
et  a la  saisie  momentanee  du  vapeur  postal  franqais  “Manouba”  ainsi 
qu’a  I’arrestation  des  vingt-neuf  passagers  ottomans  qui  s’y  trouvaient 
embarqu^s. 

Sur  la  seconde  question  posee  par  le  Compromis, 

Dire  que  le  Gouvernement  Royal  Italien  sera  tenu  de  verser  au 
Gouvernement  de  la  Republique  Frangaise  la  somme  de  un  franc  de 
dommages-interets,  a titre  de  reparation  morale  de  I’atteinte  portee  a 
I’honneur  du  pavilion  fran<;ais; 

Dire  que  le  Gouvernement  Royal  Italien  sera  tenu  de  verser  au 
Gouvernement  de  la  Republique  la  somme  de  cent  mille  francs,  a titre 
de  sanction  et  de  reparation  du  prejudice  politique  et  moral  resultant 
de  Tin  fraction  par  le  Gouvernement  Royal  Italien  a ses  engagements 
conventionnels  generaux  et  speciaux  et  notamment  a la  Convention  de 
la  Haye  du  18  octobre  1907  relitive  a certaines  restrictions  au  droit 
de  capture  dans  la  guerre  maritime,  article  2,  a la  Convention  de 
Geneve  du  6 juillet  1906  pour  V amelioration  du  sort  des  blesses  et 
malades  dans  les  armies  en  campagne,  article  9,  et  a I’accord  verbale- 
ment  intervenu  entre  les  deux  Gouvernements,  le  17  Janvier  1912, 
relativement  au  controle  des  passagers  embarques  sur  le  paquebot 
‘‘Manouba” ; 

Dire  que  ladite  somme  sera  versee  au  Gouvernement  de  la  Repu- 
blique pour  le  benefice  en  etre  attribue  a telle  oeuvre  ou  institution 
d’interet  international  qu’il  plaira  au  Tribunal  d’indiquer; 


THE  MANOUBA  CASE 


567 


Dire  que  le  Gouvernement  Royal  Italien  sera  tenu  de  verser  au 
Gouvemement  de  la  Republique  Frangaise  la  somme  de  cent  huit  mille 
six  cent  un  francs  soixante-dix  centimes,  montant  des  indemnites 
reclamees  par  les  particuliers  interesses,  soit  dans  le  paquebot 
“Manouba,”  soit  dans  son  expedition ; 

Subsidiairement  et  pour  le  cas  ou,  sur  ce  dernier  chef,  le  Tribunal 
ne  se  croirait  pas  suffisamment  eclairee. 

Dire,  avant  faire  droit,  que,  par  tel  ou  tels  de  ses  membres  qu  il 
commettra  a cet  effet,  il  sera  procede,  dans  la  Chambre  de  ses  delibera- 
tions et  en  presence  des  Agents  et  Conseils  des  deux  Gouvernements,  a 
I’examen  des  diverses  reclamations  des  particuliers  interesses ; 

Dans  tons  les  cas,  et  par  application  de  I’article  9 du  Compromis, 

Dire  que,  a I’expiration  d’un  delai  de  trois  mois  a compter  du  jour 
de  la  sentence,  les  sommes  mises  a la  charge  du  Gouvemement  Royal 
Italien  et  non  encore  versees  seront  productives  d’interets  a raison  de 
quatre  pour  cent  par  an. 

Et  I’Agent  du  (^uvernement  Royal  Italien: 

Plaise  au  Tribunal, 

Sur  la  premiere  question  posee  par  le  Compromis, 

Dire  et  juger  que  les  autorites  navales  italiennes  etaient  pleinement 
en  droit  de  proceder  comme  elles  ont  fait  a la  capture  et  a la  saisie 
momentanee  du  vapeur  postal  frangais  “Manouba”  ainsi  qu’a  Tarresta- 
tion  des  vingt-neuf  passagers  ottomans  sur  lesquels  pesait  le  soupgon 
qu’ils  etaient  des  militaires,  et  dont  le  Gouvernement  Italien  avait  le 
droit  de  controler  la  veritable  qualite. 

En  consequence  et  sur  la  seconde  question. 

Dire  et  juger  qu’aucune  consequence  pecuniaire  ou  autre  ne  saurait 
resulter  a la  charge  du  Gouvernement  Italien  de  la  capture  et  de  la 
saisie  momentanee  du  vapeur  postal  frangais  “Manouba”; 

Dire  et  juger  que  le  Gouvemement  Frangais  a pretendu  a tort  qu’on 
lui  remit  les  passagers  ottomans  qui  se  trouvaient  legalement  entre 
les  mains  des  autorites  italiennes ; 

Dire  que  le  Gouvernement  de  la  Republique  sera  tenu  de  verser  au 
Gouvemement  Royal  la  somme  de  cent  mille  francs  a titre  de  sanction 
et  de  reparation  du  prejudice  materiel  et  moral  resultant  de  la  viola- 
tion du  droit  international,  notamment  en  ce  qui  concerne  le  droit  que 
le  belligerant  a de  verifier  la  qualite  d’individus  soupgonnes  etre  des 
militaires  ennemis,  trouves  a bord  de  navires  de  commerce  neutres ; 

Dire  que  ladite  somme  sera  versee  au  Gouvernement  Royal  Italien 
pour  etre  attribuee  a telle  oeuvre  ou  institution  d’interet  international 
qu’il  plaira  au  Tribunal  d’indiquer; 

Subsidiairement  et  pour  le  cas  ou  le  Tribunal  ne  croirait  pas  devoir 
admettre  cette  forme  de  sanction. 

Dire  que  le  Gouvernement  de  la  Republique  sera  tenu  de  reparer 
le  tort  fait  au  Gouvernement  Royal  Italien  de  telle  maniere  qu’il 
plaira  au  Tribunal  d’indiquer; 

Dans  tons  les  cas, 


568 


ORIGINAL  TEXTS 


Dire  que  le  Gouvemement  de  la  Republique  sera  term  de  verser  au 
Gouvemement  Royal  Italien  la  somme  de  quatre  cent  quatorze  francs 
quarante-cinq  centimes,  montant  des  frais  occasionnes  par  la  saisie  du 
“Manouba” ; 

Dire  que,  a I’expiration  d’un  delai  de  trois  mois  a compter  du  jour 
de  la  sentence,  les  sommes  mises  a la  charge  du  Gouvemement  de 
la  Republique  et  non  encore  versees  seront  productives  d’interets  a 
raison  de  quatre  pour  cent  par  an. 

Considerant  que,  apres  que  le  Tribunal  eut  entendu  les  exposes 
oraux  des  Agents  des  Parties  et  les  explications  qu’ils  lui  ont  fournies 
sur  sa  demande,  les  debats  ont  ete  dument  declares  clos. 

En  Fait: 

Considerant  que  le  vapeur  postal  fran^ais  “Manouba,”  de  la  Com- 
pagnie  de  Navigation  Mixte,  au  cours  d’un  voyage  regulier  entre 
Marseille  et  Tunis,  fut  arrete  dans  les  parages  de  I’ile  de  San  Pietro, 
le  18  Janvier  1912,  vers  8 heures  du  matin,  par  le  contre-torpilleur  de 
la  Marine  Royale  Italienne  “Agordat”; 

Considerant  que,  apres  constatation  de  la  presence,  a bord  dudit 
vapeur,  de  vingt-neuf  passagers  turcs,  soupqonnes  d’appartenir  a 
Tarmee  ottomane,  le  “Manouba”  fut  conduit  sous  capture  a Cagliari ; 

Considerant  que,  arrive  dans  ce  port  le  meme  jour,  vers  5 heures 
du  soir,  le  capitaine  du  “Manouba”  fut  somme  de  livrer  les  vingt-neuf 
passagers  susmentionnes  aux  autorites  italiennes  et  que,  sur  son  refus, 
ces  autorites  procederent  a la  saisie  du  vapeur; 

Considerant  enfin  que,  sur  I’invitation  du  Vice-Consul  de  France  a 
Cagliari,  les  vingt-neuf  passagers  turcs  furent  livres  le  19  Janvier,  a 
4 heures  30  de  I’apres-midi,  aux  autorites  italiennes, 

et  que  le  “Manouba,”  alors  relaxe,  se  remit  en  route  sur  Tunis  le 
meme  jour,  a 7 heures  20  du  soir. 

En  Droit: 

Considerant  que,  si  le  Gouvemement  Frangais  a du  penser,  etant 
donne  les  circonstances  dans  lesquelles  la  presence  de  passagers  otto- 
mans a bord  du  “Manouba”  lui  etait  signalee,  que,  moyennant  la 
promesse  de  faire  verifier  le  caractere  desdits  passagers,  il  exemptait 
le  “Manouba”  de  toute  mesure  de  visite  ou  de  coercition  de  la  part 
des  autorites  navales  italiennes,  il  est  etabli  qu’en  toute  bonne  foi  le 
Gouvemement  Italien  n’a  pas  entendu  la  chose  de  cette  fagon ; 

que,  par  suite,  en  I’absence  d’un  accord  special  entre  les  deux 
Gouvemements,  les  autorites  navales  italiennes  ont  pu  agir  conforme- 
ment  au  droit  commun ; 

Considerant  que,  d’apres  la  teneur  du  Compromis,  I’operation 
effectuee  par  les  autorites  navales  italiennes  renferme  trois  phases 
successives,  savoir:  la  capture,  la  saisie  momentanee  du  “Manouba” 
et  I’arrestation  des  vingt-neuf  passagers  ottomans  qui  s’y  trouvaient 
embarques ; 

qu’il  convient  d’examiner  d’abord  la  legitimite  de  chacune  de  ces 


THE  MANOUBA  CASE 


569 


trois  phases,  regardees  comme  des  actes  isoles  et  independants  dc 
I’ensemble  de  I’operation  susmentionnee ; 

Dans  cet  ordre  d’idees, 

Considerant  que  les  autorites  navales  italiennes  avaient,  lors  de  la 
capture  du  “Manouba,”  des  motifs  suffisants  de  croire  que  les  pas- 
sagers  ottomans  qui  s’y  trouvaient  embarques  etaient,  au  moins  en 
partie,  des  militaires  enroles  dans  I’armee  ennemie ; 

que  ces  autorites  avaient,  par  consequent,  le  droit  de  se  les  faire 
remettre ; 

Considerant  qu’elles  pouvaient,  a cet  effet,  sommer  le  capitaine  de 
les  livrer,  ainsi  que  prendre,  en  cas  de  refus,  les  mesures  necessaires 
pour  I’y  contraindre  ou  pour  s’emparer  de  ces  passagers ; 

Considerant,  d’autre  part,  que,  meme  etant  admis  que  les  passagers 
ottomans  aient  pu  etre  consideres  comme  formant  une  troupe  ou  un 
detachement  militaire,  rien  ne  permettait  de  revoquer  en  doute  I’entiere 
bonne  foi  de  I’armateur  et  du  capitaine  du  “Manouba” ; 

Considerant  que,  dans  ces  circonstances,  les  autorites  navales 
italiennes  n’etaient  pas  en  droit  de  capturer  le  “Manouba,”  et  de  le 
faire  devier  pour  suivre  l’“Agordat”  a Cagliari,  si  ce  n’est  comme 
moyen  de  contrainte  et  apres  que  le  capitaine  eut  refuse  d’obeir  a 
une  summation  de  livrer  les  passagers  ottomans; 

que,  aucune  summation  de  ce  genre  n’ayant  eu  lieu  avant  la  capture, 
I’acte  de  capturer  le  “Manouba”  et  de  I’amener  a Cagliari  n’etait  pas 
legitime ; 

Considerant  que,  la  summation  faite  a Cagliari  etant  restee  sans 
effet  immediat’  les  autorites  navales  italiennes  avaient  le  droit  de 
prendre  les  mesures  de  contrainte  necessaires  et,  specialement,  de 
retenir  le  “Manouba”  jusqu’a  ce  que  les  passagers  ottomans  fussent 
livres ; 

que  la  saisie  effectuee  n’etait  legitime  que  dans  les  limites  d’un 
sequestre  temporaire  et  conditionnel ; 

Considerant  enfin  que  les  autorites  navales  italiennes  avaient  le  droit 
de  se  faire  livrer  et  d’arreter  les  passagers  ottomans. 

Pour  ce  qui  concerne  I’ensemble  de  I’operation, 

Considerant  que  les  trois  phases  dont  se  compose  I’operation  unique 
prevue  par  le  Compromis  doivent  etre  appreciees  en  elles-memes,  sans 
que  I’illegalite  de  Tune  d’elles  doive,  dans  fespece,  influer  sur  la 
regularite  des  autres; 

que  rillegalite  de  la  capture  et  de  la  conduite  du  “Manouba”  a 
Cagliari  n’a  pas  vicie  les  phases  posterieures  de  I’operation; 

Considerant  que  la  capture  ne  pourrait  non  plus  etre  legitimee  par 
la  regularite,  relative  ou  absolue,  de  ces  demieres  phases  envisagees 
separement. 

Sur  la  demande  tendant  a faire  condamner  le  Gouvernement  Royal 
Italien  a verser  a titre  de  dommages-interets : 

1°.  la  somme  de  un  franc  pour  atteinte  portee  au  pavilion  frangais ; 

2®.  la  somme  de  cent  mille  francs  pour  reparation  du  prejudice 
moral  et  politique  resultant  de  I’inobservation  du  droit  commun  inter- 
national et  des  conventions  reciproquement  obligatoires  pour  I’ltalie 
comme  pour  la  France, 


570 


ORIGINAL  TEXTS 


Et  sur  la  demande  tendant  a faire  condamner  le  Gouvernement  de  la 
Republique  Frangaise  a verser  la  somme  de  cent  mille  francs  a titre 
de  sanction  et  de  reparation  du  prejudice  material  et  moral  resultant 
de  la  violation  du  droit  international,  notamment  en  ce  qui  concerne  le 
droit  que  le  belligerant  a de  verifier  la  qualite  d’individus  soupgonnes 
etre  des  militaires  ennemis,  trouves  a bord  de  navires  de  commerce 
neutres, 

Considerant  que,  pour  le  cas  ou  une  Puissance  aurait  manque  a rem- 
plir  ses  obligations,  soit  generales,  soit  speciales,  vis-a-vis  d’une  autre 
Puissance,  la  constatation  de  ce  fait,  surtout  dans  une  sentence  arbi- 
tral, constitue  deja  une  sanction  serieuse; 

que  cette  sanction  est  renforcee,  le  cas  echeant,  par  le  paiement  de 
dommages-interets  pour  les  pertes  materielles ; 

que,  en  these  generale  et  abstraction  faite  de  situations  particulieres, 
ces  sanctions  paraissent  suffisantes ; 

que,  egalement  en  these  generale,  I’introduction  d’une  autre  sanction 
pecuniaire  parait  etre  superflue  et  depasser  le  but  de  la  juridiction 
Internationale ; 

Considerant  que,  par  application  de  ce  qui  vient  d’etre  dit,  les  cir- 
constances  de  la  cause  presente  ne  sauraient  motiver  une  telle  sanction 
supplementaire ; que,  sans  autre  examen,  il  n’y  a done  pas  lieu  de 
donner  suite  aux  demandes  susmentionnees. 

Sur  la  demande  de  I’Agent  frangais  tendant  a ce  que  le  Gouveme- 
ment  Royal  Italien  soit  tenu  de  verser  au  Gouvernement  de  la  Re- 
publique Frangaise  la  somme  de  cent  huit  mille  six  cent  un  francs 
soixante-dix  centimes,  montant  des  indemnites  reclamees  par  les  par- 
ticuliers  interesses,  soit  dans  le  vapeur  “Manouba,”  soit  dans  son 
expedition, 

Considerant  qu’une  indemnite  est  due  pour  le  retard  occasionne  au 
“Manouba”  par  sa  capture  non  justifiee  et  sa  conduite  a Cagliari,  mais 
qu’il  y a lieu  de  tenir  compte  du  retard  provenant  du  refus  non  legitime 
du  capitaine  de  livrer  a Cagliari  les  vingt-neuf  passagers  turcs  et  aussi 
du  fait  que  le  navire  n’a  pas  ete  entierement  detoume  de  sa  route  sur 
Tunis ; 

Considerant  que,  si  les  autorites  navales  italiennes  ont  opere  la 
saisie  du  “Manouba”  au  lieu  du  sequestre  temporaire  et  conditionnel 
qui  etait  l^itime,  il  apparait  que,  de  ce  chef,  les  interesses  n’ont  pas 
eprouve  de  pertes  et  dommages ; 

Considerant  que,  en  faisant  etat  de  ces  circonstances  et  aussi  des 
frais  occasionnes  au  Gouvernement  Italien  par  la  surveillance  du  navire 
retenu,  le  Tribunal,  apres  avoir  entendu  les  explications  concordantes 
de  deux  de  ses  Membres  charges  par  lui  de  proceder  a une  enquete  sur 
lesdites  reclamations,  a evalue  a quatre  mille  francs  la  somme  due  a 
I’ensemble  des  interesses  au  navire  et  a son  expedition. 

Par  ces  Motifs, 

Le  Tribunal  Arbitral  declare  et  prononce  ce  qui  suit: 

Pour  ce  qui  concerne  I’ensemble  de  I’operation  visee  dans  le  premiere 
question  posee  par  le  Compromis, 


THE  MANOUBA  CASE 


571 


Les  differentes  phases  de  cette  operation  ne  doivent  pas  etre  con- 
siderees  comme  connexes  en  ce  sens  que  le  caractere  de  I’une  doive, 
dans  I’espece,  influer  sur  le  caractere  des  autres. 

Pour  ce  qui  concerne  les  differentes  phases  de  ladite  operation, 
appreciees  separement, 

Les  autorites  navales  italiennes  n’etaient  pas,  d’une  fagon  generale 
et  d’apres  les  circonstances  speciales  ou  I’operation  a ete  accomplie,  en 
droit  de  proceder  comme  elles  ont  fait  a la  capture  du  vapeur  postal 
frangais  “Manouba”  et  a sa  conduite  a Cagliari; 

Le  “Manouba”  une  fois  capture  et  amene  a Cagliari,  les  autorites 
navales  italiennes  etaient,  d’une  fagon  generale  et  d’apres  les  circon- 
stances speciales  ou  I’operation  a ete  accomplie,  en  droit  de  proceder 
comme  elles  ont  fait  a la  saisie  momentanee  du  “Manouba,”  dans  la 
mesure  ou  cette  saisie  ne  depassait  pas  les  limites  d’un  sequestre  tem- 
poraire  et  conditionnel,  ayant  pour  but  de  contraindre  le  capitaine  du 
“Manouba”  a livrer  les  vingt-neuf  passagers  ottomans  qui  s’y  trou- 
vaient  embarques ; 

Le  “Manouba”  une  fois  capture,  amene  a Cagliari  et  saisi,  les  auto- 
rites navales  italiennes  etaient,  d’une  fagon  generale  et  d’apres  les  cir- 
constances speciales  ou  I’operation  a ete  accomplie,  en  droit  de  proceder 
comme  elles  ont  fait  a I’arrestation  des  vingt-neuf  passagers  ottomans 
qui  s’y  trouvaient  embarques. 

Pour  ce  qui  concerne  la  seconde  question  posee  par  le  Compromis, 

Le  Gouvernement  Royal  Italien  sera  tenu,  dans  les  trois  mois  de  la 
presente  sentence,  de  verser  au  Gouvernement  de  la  Republique  Fran- 
gaise  la  somme  de  quatre  mille  francs,  qui,  deduction  faite  des  frais  de 
surveillance  du  “Manouba”  dus  au  Gouvernement  italien,  forme  le 
montant  dcs  pertes  et  dommages  eprouves,  a raison  de  la  capture  et 
de  la  conduite  du  “Manouba”  a Cagliari,  par  les  particuliers  interesses 
au  navire  et  a son  expedition. 

II  n’y  a pas  lieu  de  donner  suite  aux  autres  reclamations  contenues 
dans  les  conclusions  des  deux  Parties. 

Fait  a La  Haye,  dans  I’Hotel  de  la  Cour  Permanente  d’Arbitrage, 
le  6 mai  1913. 

Le  President:  Hj.  L.  Hammarskjold 
Le  Secretaire  general:  Michiels  van  Verduynen 
Le  Secretaire:  Roell 


Agreement  for  Arbitration,  March  6,  igi2^ 

Le  Gouvernement  de  la  Republique  Frangaise  et  le  Gouvernement 
Royal  Italien,  s’etant  mis  d’accord  le  26  janvier  1912  par  application 
de  la  Convention  d’arbitrage  franco-italienne  du  25  decembre  1903, 
renouvelee  le  24  decembre  1908  pour  confier  a un  Tribunal  d’arbitrage 
I’examen  de  la  capture  et  de  la  saisie  momentanee  du  vapeur 
postal  frangais  “Manouba”  par  les  autorites  navales  italiennes  notam- 


^Official  report,  p.  9. 


572 


ORIGINAL  TEXTS 


ment  dans  les  circonstances  speciales  ou  cette  operation  a ete  accomplie 
et  de  I’arrestation  de  vingt-neuf  passagers  ottomans  qui  s’y  trouvaient 
embarques,  ainsi  que  la  mission  de  se  prononcer  sur  les  consequences 
qui  en  derivent, 

Les  soussignes,  dument  autorises  a cet  effet,  sont  convenus  du  Com- 
promis  suivant ; 

Article  1 

Un  Tribunal  arbitral,  compose  comme  il  est  dit  ci-apres,  est  charge 
de  resoudre  les  questions  suivantes : 

1°.  Les  autorites  navales  italiennes  etaient-elles,  d’une  fagon  generale 
et  d’apres  les  circonstances  speciales  ou  I’operation  a ete  accomplie, 
en  droit  de  proceder  comme  elles  ont  fait  a la  capture  et  a la  saisie 
momentanee  du  vapeur  postal  frangais  “Manouba,”  ainsi  qu’a  I’arresta- 
tion  des  vingt-neuf  passagers  ottomans  qui  s’y  trouvaient  embarques? 

2°.  Quelles  consequences  pecuniaires  ou  autres  doivent  resulter  de 
la  solution  donnee  a la  question  precedente? 

Article  2 

Le  Tribunal  sera  compose  de  cinq  Arbitres  que  les  deux  Gouveme- 
ments  choisiront  parmi  les  Membres  de  la  Cour  permanente  d’ Arbitrage 
de  La  Haye,  en  designant  celui  d’entre  eux  qui  remplira  les  functions 
de  Surarbitre. 

Article  3 

A la  date  du  15  juin  1912,  chaque  Partie  deposera  au  Bureau  de  la 
Cour  permanente  d’Arbitrage  quinze  exemplaires  de  son  memoire,  avec 
les  copies  certifiees  conformes  de  tons  les  documents  et  pieces  qu’elle 
compte  invoquer  dans  la  cause. 

Le  Bureau  en  assurera  sans  retard  la  transmission  aux  Arbitres  ot 
aux  Parties,  savoir  deux  exemplaires  pour  chaque  Arbitre,  trois  exem- 
plaires pour  la  Partie  adverse ; deux  exemplaires  resteront  dans  les 
archives  du  Bureau. 

A la  date  du  15  aout  1912,  chaque  Partie  deposera  dans  les  memes 
conditions  que  ci-dessus,  son  contre-memoire  avec  les  pieces  a I’appui 
et  ses  conclusions  finales. 

Article  4 

Chacune  des  Parties  deposera  au  Bureau  de  la  Cour  permanente 
d’Arbitrage  de  La  Haye,  en  meme  temps  que  son  memoire  et  a titre 
de  provision,  une  somme  qui  sera  fixee  d’un  commun  accord. 

Article  5 

Le  Tribunal  se  reunira  a La  Haye,  sur  la  convocation  de  son  Presi- 
dent, dans  la  deuxieme  quinzaine  du  mois  de  septembre  1912. 

Article  6 

Chaque  Partie  sera  representee  par  un  Agent  avec  mission  de  servir 
d’intermediaire  entre  elle  et  le  Tribunal. 


THE  MANOUBA  CASE 


573 


Le  Tribunal  pourra,  s’il  I’estime  necessaire,  demander  a Tun  ou  a 
I’autre  des  Agents  de  lui  fournir  des  explications  orales  ou  ecrites, 
auxquelles  I’Agent  de  la  Partie  adverse  aura  le  droit  de  repondre. 

Article  7 

La  langue  frangaise  est  la  langue  du  Tribunal.  Chaque  Partie  pourra 
faire  usage  de  sa  propre  langue. 

Article  8 

La  sentence  du  Tribunal  sera  rendue  dans  le  plus  bref  delai 
possible  et  dans  tons  les  cas  dans  les  trente  jours  qui  suivnont  la 
cloture  des  debats.  Toutefois,  ce  delai  pourra  etre  prolonge  a la  de- 
mande  du  Tribunal  et  du  consentement  des  Parties. 


Article  9 


Le  Tribunal  est  competent  pour  regler  les  conditions  d’execution  de 
sa  sentence. 


Article  10 


Pour  tout  ce  qui  n’est  pas  prevu  par  le  present  Compromis,  les  dis- 
positions de  la  Convention  de  La  Haye  du  18  octobre  1907  pour  le 
reglement  pacifique  des  conflits  internationaux  seront  applicables  au 
present  Arbitrage. 

Fait  en  double  a Paris,  le  6 mars  1912. 

Signe:  L.  Renault 

Signe : G.  Fusinato 


THE  ISLAND  OF  TIMOR  CASE 


Award  of  the  Tribunal,  June  25,  1914^ 

Une  contestation  etant  surv'enue  entre  le  Gouvernement  royal  neer- 
landais  et  celui  de  la  Republique  portugaise  au  sujet  de  la  delimitation 
d’une  partie  de  leurs  possessions  respectives  dans  Tile  de  Timor,  les 
deux  Gouvemements  ont  decide,  par  une  Convention  signee  a La 
Haye  le  3 avril  1913  et  dont  les  ratifications  ont  ete  echangees  dans  la 
meme  ville  le  31  juillet  suivant,  d’en  remettre  la  solution  en  dernier 
ressort  a un  arbitre,  et  ont  a cet  effet  designe  d’un  commun  accord 
le  soussigne. 

Pour  comprendre  le  sens  et  la  portee  du  compromis  du  3 avril  1913, 
il  y a lieu  d’exposer  succinctement  les  negociations  qui  ont  precede 
ce  compromis. 

I 

Historique 

L’ile  de  Timor,  la  derniere  a I’orient  de  la  serie  continue  des  lies 
de  la  Sonde  et  la  plus  rapprochee  de  I’Australie,  fut  decouverte  au 
XVI“*  si^le  par  les  Portugais ; cette  ile  mesure  environ  500  kilometres 
de  longueur  de  I’ouest  a Test  sur  une  largeur  de  100  kilometres  au 
maximum.  Une  haute  chaine  de  montagnes,  dont  certains  sommets 
atteignent  pres  de  3,000  metres  d’altitude,  separe  Tile  dans  le  sens  de 
la  longueur  en  deux  versants. 

La  partie  orientale  de  I’ile,  d’une  superficie  approximative  de  19,000 
kilometres  carres  avec  ure  population  d’environ  300,000  habitants,  est 
portugaise.  La  partie  occidentale,  avec  une  population  evaluee  en 
1907  a 131,000  habitants  et  une  superficie  d’environ  20,000  kilometres 
carres,  est  sous  la  souverainete  des  Pays-Bas,  a I’exception  du 
“Royaume  d’Okussi  et  d’Ambeno,”  situe  sur  la  cote  nord-ouest  au 
milieu  de  territoires  neerlandais  de  tous  les  cotes  sauf  du  cote  de  la 
mer.  Ce  nom  de  “rois”  donne  par  les  Portugais  aux  chefs  des  tribus 
s’explique  par  le  fait  que,  dans  la  langue  indigene,  on  les  appelle 
Leorey;  la  syllabe  finale  de  ce  mot  a ete  traduite  en  portugais  par  le 
mot  Rey.  Les  Neerlandais  donnent  a ces  chefs  le  titre  plus  modeste 
de  radjahs. 

Cette  repartition  territoriale  entre  les  Pays-Bas  et  le  Portugal  repose 
sur  les  Accords  suivants: 

Le  20  avril  1859,  un  traite  signe  a Lisbonne  et  dument  ratifie  au 
cours  de  I’ete  de  18^,  avait  determine  les  frontieres  respectives  par  le 
milieu  de  I’ile,  mais  avait  laisse  subsister  (art.  2)  “I’enclave”  neer- 
landaise  de  Maucatar  au  milieu  des  territoires  portugais  et  “I’enclave” 


^Official  report,  p.  3. 


THE  ISLAND  OF  1 IMOR  CASE 


575 


portugaise  d’Oikoussi  au  milieu  des  territoires  neerlandais  de  I’ouest 
de  rile.  II  fut  stipule  (art.  3)  que  cette  “enclave  d’Oikoussi  comprend 
I’Etat  d’Ambenu  partout  ou  y est  arbore  le  pavilion  portugais,  I’fitat 
d’Oikoussi  proprement  dit  et  celui  de  Noimuti.” 

Par  une  autre  Convention  signee  a Lisbonne  le  10  juin  1893  ct 
dument  ratifiee,  les  deux  Gouvernements,  “desirant  regler  dans  les 
conditions  les  plus  favorables  au  developpement  de  la  civilisation  et 
du  commerce”  leurs  relations  dans  I’archipel  de  Timor,  convinrent 
“d’etablir  d’une  fagon  plus  claire  et  plus  exacte  la  demarcation  de  leurs 
possessions”  dans  cette  ile  “et  de  faire  disparaitre  les  enclaves  actuelle- 
ment  existantes”  (Preambule  et  art.  I®'').  Une  commission  d’experts 
devait  etre  designee  a I’effet  de  “formuler  une  proposition  pouvant  ser- 
vir  de  base  a la  conclusion  d’une  Convention  ulterieure  determinant 
la  nouvelle  ligne  de  demarcation  dans  ladite  ile”  (art.  II).  En  cas 
de  difficultes,  les  deux  Parties  s’engageaient  “a  se  soumettre  a la 
decision  . . . d’arbitres”  (art.  VII). 

Cette  commission  mixte  se  rendit  sur  les  lieux  et  se  mit  d’accord  en 
1898-1899  sur  la  plus  grande  partie  de  la  delimitation.  Toutefois, 
tant  sur  la  frontiere  principale  au  milieu  de  I’ile  de  Timor  que  sur  la 
frontiere  du  Royaume  d’Okussi-Ambenu  dans  la  partie  occidental  de 
rile,  d’assez  nombreuses  divergences  persistaient.  La  carte  annexee 
sous  N°.  II  indique  les  pretentions  respectives.  Une  Conference  fut 
reunie  a La  Haye  du  23  juin  au  3 juillet  1902  pour  tacher  de  les  solu- 
tionner.  Elle  arreta  le  3 juillet  1902  un  pro  jet  qui  fut  transforme  en 
Convention  diplomatique  signee  a La  Haye  le  1®’’  octobre  1904  et 
dument  ratifiee. 

Les  resultats  sommaires  de  cette  Convention  de  1904  sont  figures 
sur  la  carte  transparente  annexee  sous  N°.  I ; la  superposition  de  la 
carte  transparente  N®.  I sur  la  carte  N®.  II  permet  de  constater  que  le 
Portugal  a obtenu,  au  centre  de  I’ile  de  Timor,  I’enclave  neerlandaise 
de  Maukatar,  et  que  les  Pays-Bas  ont  obtenu  dans  cette  meme  region 
le  Tahakay  et  le  Tamira  Ailala.  D’autre  part,  au  nord-ouest  de  I’ile 
de  Timor  et  au  sud  du  territoire  designe  par  le  traite  de  1859  sous  le 
nom  d’enclave  d’Oikussi,  les  Pays-Bas  obtiennent  le  Noimuti.  Enfin 
la  limite  orientale  contestee  de  ce  territoire  d’Oikussi-Ambeno  est  fixee 
theoriquement  selon  une  ligne  A-C  qui  devra  etre  “arpentee  et  in- 
diquee  sur  le  terrain  dans  le  plus  court  delai  possible.”  (Actes  de  la 
Conference  de  1902,  seances  du  27  juin,  pages  10  et  11,  et  du  28  juin, 
page  12;  Convention  du  1®”  octobre  1904,  article  4.)  La  ligne  A-C 
admise  en  Conference  fut  definie  a I’article  3 chiffre  10  de  la  Conven- 
tion de  1904  dans  les  termes  suivants;  “A  partir  de  ce  point”  (le 
confluent  de  la  Noel  Bilomi  avec  I’Oe-Sunan)  “la  limite  suit  le  thalweg 
de  I’Oe-Sounan,  traverse  autant  que  possible  Nipani  et  Kelali  (Keli), 
gagne  la  source  de  la  NoH  Meto  et  suit  le  thalweg  de  cette  riviere 
jusqu’a  son  embouchure.” 

Tout  semblait  termine,  lorsque  les  commissaires  delimitateurs  arrives 
sur  les  lieux  en  juin  1909  pour  les  operations  du  homage  de  la  frontiere 
orientale  de  I’Oikussi-Ambeno  ne  purent  se  mettre  d’accord  et  de- 
ciderent  d’en  referer  i leurs  Gouvernements.  Les  deux  Gouverne- 


576 


ORIGINAL  TEXTS 


ments  ne  purent  pas  davantage  se  mettre  d’accord  et  deciderent  de  re- 
courir  a un  arbitrage.  Quelle  etait  cette  difficulte  rencontree  par  les 
commissaires  delimitateurs  ? 

II 

La  difficulte  qui  a provoque  l' arbitrage 

En  procedant  aux  trauvaux  de  delimitation  de  la  frontiere  orientale 
de  rOikussi-Ambeno,  les  commissaires  avaient  commence  au  nord,  sur 
la  cote,  et  remonte  dans  la  direction  du  sud  le  cours  de  la  riviere  Noel 
Meto,  qui  devait  servir  de  frontiere  de  son  embouchure  a sa  source. 
Ces  operations  eurent  lieu  entre  le  1®’’  et  le  10  juin  1909,  et  une  borne 
fut  placee  a la  source  de  la  Noel  Meto.  Cette  source  etant  dominee 
par  des  falaises  abruptes  impossibles  a franchir,  les  commissaires 
resolurent  une  reconnaissance  generale  du  terrain  entre  la  partie  sep- 
tentrionale  et  la  partie  meridionale  du  territoire  encore  a delimiter, 
c*est-a-dire  entre  la  source  de  la  Nod  Meto  au  nord  et  la  riviere 
Nod  Bilomi  au  sud. 

Au  nord,  un  premier  dissentiment  surgit:  La  carte  (voir  annexe 
III)  signee  en  1904  en  meme  temps  que  la  Convention,  portait  le 
mot  Kelali  accompagne  entre  parentheses  du  mot  Kelt.  Les  ddegues 
neerlandais  soutinrent  que  le  mot  Keli  designe,  sur  le  sommet  du 
mont  Kelali,  un  point  special  situe  a I’ouest  de  la  source  de  la  Nod 
Meto  entre  deux  pierres  “en  pic”  et  qui  a ete  indique  par  les  indigdies 
du  Tumbaba  (neerlandais)  comme  la  limite  entre  eux  et  les  indigenes 
(portugais)  de  TAmbeno:  ce  point  est,  d’apres  les  commissaires  neer- 
landais, une  “magnifique  limite”  naturelle  qui  suit  a peu  pres  la  limite 
figuree  sur  la  carte  de  1904.  Les  commissaires  portugais  au  contraire 
proposaient  “de  suivre  . . . quelques  thalwegs  dans  le  terrain 
a Test  de  la  ligne  proposee  par  les  delegues  neerlandais,  en  partant  de 
la  meme  borne”  placee  a la  source  de  la  Nod  Meto.  La  commission 
decida  d’arpenter  les  deux  lignes  et  de  laisser  la  solution  aux  autorites 
superieures. 

Dans  la  partie  sud,  sur  la  riviere  Bilomi,  les  commissaires  constatent, 
dans  leur  seance  du  17  juin  1909,  qu’ils  ont  suivi  de  I’ouest  a Test  le 
cours  de  la  Nono  Nisi  (ou  Nise)  puis  le  cours  de  la  Nod  Bilomi  et 
qu’ils  ont  maintenant  "atteint  I’endroit  (ou  la  commission  de  1889 
avait  termine  son  travail)  oil  il  faut  continuer  I’arpentage  vers  le  nord.** 
Ce  point  avait  ete  designe  dans  la  Convention  de  1904,  article  3, 
chiflFres  9 et  10,  et  sur  la  carte  y annexee,  comme  le  confluent  de  la 
Noel  Bilomi  et  de  I’Oe  Sunan.  “Les  quatre  ddegues  constatent  gu'd 
cet  endroit,  il  y a deux  aMuents  venant  du  nord,  mats  qu’aucun  d’eux 
ne  s*appelle  I’Ok  Sutton.** 

Les  ddegues  neerlandais  exposent  alors  que  la  contree  situee  entre 
ces  deux  affluents  est  nommee  Sunan,  qu’ils  ne  connaissent  d’ailleurs 
aucun  affluent  de  la  Nod  Bilomi  portant  le  nom  d’Oe  Sunan  et  qu’il 
n’en  existe  pas ; ils  insistent  done  pour  que  la  ligne  frontiere  soit 
arpentee  vers  le  nord  a partir  du  point  designe  sur  les  cartes  de  1899 
et  de  1904. 


THE  ISLAND  OF  TIMOR  CASE 


577 


Les  delegnes  portugais  font  observer  qu’une  riviere  nommee  Oe 
Sunan  ou  Oil  Sunan,  qui  n’est,  il  est  vrai,  pas  un  affluent  de  la  Bilomi, 
existe  plus  a Test  et  a sa  source  “tout  pres  du  Bilomi.” 

Les  commissaires  decident  a I’unanimite  d’arpenter  les  deux  lignes 
“en  partant  du  point"  indique  sur  les  cartes  de  1899  et  de  1904  et  “oti 
la  commission  de  i8qq  a termine  son  travail,"  savoir  la  ligne  proposee 
par  les  delegues  neerlandais  dans  la  direction  du  nord  et  la  ligne 
desiree  par  les  Portugais  dans  la  direction  de  Test  (seance  du  17  juin 
1909^  Premier  Memoire  portugais,  page  27). 

A la  seance  du  21  juin  1909  et  au  cours  de  I’arpentage  de  la  ligne 
frontiere  proposee  par  les  delegues  portugais  dans  la  direction  de  Test 
en  remontant  la  riviere  Noel  Bilomi,  “les  quatre  delegues  constatent 
unanimement  qu’ils  n’ont  pas  rencontre  un  affluent  (de  la  Nod  Bilomi) 
nomme  I’Oe-Sunan.”  Les  Delegues  neerlandais  font  observer  que  la 
Bilomi  a,  dans  cette  region,  change  de  nom,  a quoi  leurs  collegues  por- 
tugais repliquent  “que  la  riviere  de  Bilomi  continue  toujours,  mais 
que,  suivant  les  usages  indigenes,  elle  porte  le  nom  de  la  contree  qu’elle 
traverse.”  Enfin  et  surtout,  les  delegues  portugais  font  observer  qu’a 
peu  de  distance  de  la  Bilomi  se  trouve,  sur  la  rive  nord,  un  mont 
Kinapua,  sur  le  versant  oppose  duquel  se  trouve  une  riviere  portant 
le  nom  d’Oe  Sunan  et  qui  coule  vers  le  nord.  II  sufflrait  de  suivre 
le  cours  de  cette  riviere,  de  remonter  ensuite  la  riviere  Noi  Fulan  et 
de  relier  enfin  la  source  de  celle-ci  avec  la  source  de  la  Noel  Meto 
deja  reconnue  par  la  commission  mixte. 

Les  delegues  neerlandais  declarent  inutile  de  proceder  a la  recon- 
naissance de  cette  riviere,  car  le  mont  Kinapua  et  la  limite  qui  resulte- 
rait  de  la  proposition  portugaise  sont  en  dehors  du  territoire  qui 
etait  conteste  en  1899;  le  mont  Tasona  figure  sur  la  carte  de  1899  sur 
I’extreme  limite  orientale  des  pretentions  portugaises  d’alors,  preten- 
tions que  le  traite  de  1904  a ecartes ; il  ne  saurait  done  etre  question 
d’une  delimitation  allant  encore  plus  loins  vers  Test. 

Les  travaux  de  la  Commission  mixte  furent  suspendus  et  la  ques- 
tion, portee  sur  le  terrain  diplomatique,  donna  lieu  a un  long  echange 
de  correspondances  entre  les  cabinets  de  La  Haye  et  de  Lisbonne. 

Ces  correspondances  ont  abouti  a I’accord  de  1913  confiant  a I’arbitre 
le  mandat  de  decider,  d’apres  “les  donnees  fournies  par  les  parties,” 
et,  en  se  basant  sur  les  principes  generaux  du  droit,  comment  doit  etre 
fixee,  conformement  a I’art.  3,  10  de  la  Convention  conclue  a La  Haye 
le  1®"^  octobre  1904  . . .,  la  limite  a partir  de  la  NoH  Bilomi 

jusqu’a  la  source  de  la  Noel  Meto.” 

Ill 

Le  point  de  vue  portugais 

Les  principaux  arguments  invoques  par  le  Gouvernement  de  la 
Republique  portugaise  en  faveur  de  la  these  soutenue  par  ses  commis- 
saires delimitateurs  peuvent  etre  resumes  comme  suit: 

1.  Au  point  ou  les  travaux  de  delimitation  de  1899  ont  ete  arretes 


578 


ORIGINAL  TEXTS 


et  ou,  d’apres  le  traite  de  1904  et  d’apres  la  carte  y annexee,  la  NoH 
Bilomi  doit  recevoir  un  affluent  du  nom  de  I’Oe  Sunan,  il  est  reconnu 
d’un  commun  accord  qu’il  n’existe  aucun  affluent  de  ce  nom. 

2.  II  existe  au  contraire,  plus  a Test,  une  riviere  Oe  Sunan  qui  n’est 
pas,  il  est  vrai,  un  affluent  de  la  Bilomi,  mais  qui  prend  sa  sources  tres 
pres  de  cette  riviere  Bilomi,  sur  le  versant  nord  de  la  montagne 
Kinapua;  sur  le  mont  Kinapua  se  trouve  une  borne  proclamee  par  de 
nombreux  chefs  indigenes  comme  ayant  servi  de  limite  reconnue  entre 
Its  Ambenos  portugais  et  les  Tumbabas  neerlandais.  De  ce  meme 
mont  Kinapua  descend  vers  la  Bilomi  un  ruisseau,  et,  du  sommet,  ces 
deux  cours  d’eau  semblent  se  continuer.  D’apres  les  chefs  indigenes, 
le  cours  de  cette  riviere  Oe  Sunan  est  la  limite  historique  et  naturelle 
entre  les  Ambenos  portugais  d’une  part  et  les  Tumbabas  et  les  Amako- 
nos  neerlandais  d’autre  part. 

3.  Les  memes  chefs  indigenes  font  rentrer  dans  I’Ambeno  toute  la 
region  comprise  entre  cette  riviere  d’Oe  Sunan  a Test,  la  riviere 
Ni  Fullan  au  nord,  et  le  territoire  incontestablement  portugais  de 
rOikoussi  Ambeno  a I’ouest  des  monts  Kelalai  et  Netton.  Sur  une 
carte  privee  publiee  a Batavia,  le  nom  d’Ambeno  se  trouve  meme  en 
entier  inscrit  dans  la  partie  revendiquee  a tort  aujourd’hui  par  les 
Pays-Bas. 

4.  Le  traite  de  1859  pose  en  principe  que  les  fitats  indigenes  ne 
doivent  pas  etre  separes,  morceles;  or  la  delimitation  proposee  par  les 
Pays-Bas  coupe  le  territoire  des  Ambenos  et  priverait  ces  indigenes  de 
leurs  paturages  et  terrains  maraichers  qui  se  trouveraient  par  la  situes 
a I’orient  de  la  frontiere  et  en  territoire  neerlandais. 

5.  Rien  ne  prouve  que  le  homage  a effectuer  doive  necessairement 
commencer  au  point  ou  le  travail  de  delimitation  avait  ete  suspendu 
en  1899  a la  suite  d’hostilites  entre  les  indigenes  et  marque  sur  les 
cartes  au  confluent  de  la  Bilomi  avec  le  ruisseau  I’Oe  Sunan  qui  n’existe 
pas  en  realite  a cet  endroit.  A cet  endroit  se  trouvent  deux  affluents ; 
le  Kaboun  et  le  Nono-Offi.  Ponrquoi  suivre  vers  le  nord  le  cours  du 
Kaboun  plutot  que  celui  du  Nono-Offi  qui  vient  du  nord-est  et  qui  se 
jette  au  meme  point  dans  la  Bilomi? 

Dans  la  pensee  du  Gouvernement  portugais,  on  a voulu  seulement 
donner  dans  les  cartes  de  1899  et  1904  aux  commissaires  delimitateurs 
“un  graphique  destine  a fixer  les  idees,  et  comme  une  vague  et  simple 
indication  de  ce  qui  devait  etre  regie  plus  tard.’’ 

La  veritable  intention  des  Signataires  du  traite  de  1904  a ete  de 
suivre  le  cours  de  I’Oe  Sunan,  la  ou  il  est  en  realite,  c’est-a-dire  beau- 
coup  plus  a Test.  Rien  n’empeche  done,  dans  I’esprit  du  traite,  de 
remonter  la  Bilomi  jusqu’au  point  le  plus  rapproche  de  la  source  du 
vrai  Oe  Sunan,  source  si  rapprochee  du  cours  de  la  Bilomi  qu’elle  en 
[est]  presque  un  affluent. 

6.  La  ligne  proposee  par  les  Pays-Bas  qui,  d’apres  le  traite  de  1904, 
doit  “traverser  autant  que  possible  Nipani  et  Kelalai  (Keli)’’  ne  tra- 
verse pas  Nipani,  mais  touche  seulement  Fatu  Nipani,  c’est-a-dire 
I’extremite  occidental  de  Nipani.  File  ne  repond  done  pas  au  pro- 
gramme de  1904. 


THE  ISLAND  OF  TIMOR  CASE 


579 


7.  La  ligne  proposee  par  les  Pays-Bas  ne  constitue  pas  une  frontiere 
naturelle,  tandis  que  celle  suggeree  par  le  Portugal  suit  des  cours 
d’eau  sur  presque  tout  son  parcours. 

IV 

Le  point  de  vue  neerlandais 

Les  principaux  arguments  du  Gouvernement  royal  neerlandais 
peuvent  etre  resumes  comme  suit : 

1.  Le  traite  de  1859  n’avait  nullement  prescrit  d’une  fagon  impera- 

tive que  les  territoires  indigenes  ne  doivent  pas  etre  devises  ou  mor- 
celes.  II  a,  au  contraire,  attribue  au  Portugal  “I’Ltat  d’Ambenu  par- 
tout  ou  y est  arbore  le  pavilion  portugais,”  sanctionnant  ainsi  non 
seulement  la  division  d’un  £tat  indigene,  mais  precisement  la  division 
de  rfitat  d’Ambenu  et  cela  dans  les  termes  suivan'.s : “La  Neerlande 
cede  au  Portugal  . . . cette  partie  de  I’Etat  d'Ambenu  ou  d’Am- 

beno  qui,  depuis  plusieurs  annees,  a arbore  le  pavilion  portugais.” 

Au  surplus,  le  traite  de  1859  a pu  etre  et  a ete  effectivement  modifie 
par  les  traites  subsequents  et  ce  sont  les  traites  subsequents  qui, 
aujourd’hui,  doivent  seuls  etre  pris  en  consideration  la  ou  ils  ont 
modifie  le  traite  de  1859. 

2.  II  n’existe  aucune  incertitude  sur  le  point  auquel  les  commissaires 
delimitateurs  se  sont  arretes  en  1899.  Ce  point  a servi  de  base  aux 
negociations  de  1902  et  a ete  repere  sur  la  carte  (annexe  III)  signee 
alors  par  les  negociateurs  des  deux  Pays  pour  etre  jointe  au  projet 
de  traite.  Ce  projet  de  1902  est  devenu  le  traite  de  1904.  C’est  de  ce 
point  et  non  d’un  autre  que  part  la  ligne  A-C,  admise  en  1902  comme 
devant  former  la  frontiere  (carte  annexe  I).  Cette  ligne  A-C  se  dirige 
de  ce  point  vers  le  nord  jusqu’a  la  source  de  la  riviere  Noel  Meto  et 
la  frontiere  doit  suivre  ensuite  ce  cours  d’eau  jusqu’a  son  embouchure 
dans  la  mer  au  nord. 

L’emplacement  de  la  source  de  la  Noel  Meto  a ete  contradictoire- 
ment  reconnu  en  1909 ; une  borne  y a ete  plantee  d’un  commun  accord. 
La  discussion  ne  porte  que  sur  le  trace  entre  cette  souice  et  le  point  A 
situe  a I’endroit  ou  les  commissaires  se  sont  arretes  en  1899. 

3.  Sur  la  carte  officielle  de  1899  (annexe  IV)  comme  sur  la  carte 
officielle  de  1904  (annexe  III),  figure  au  point  dont  il  s’agit  un  affluent 
venant  du  nord  et  auquel  on  a,  par  une  erreur  que  les  Pays-Bas  ne 
contestent  pas,  donne  a tort  le  nom  d’Oe  Sunan.  Cet  affluent,  qui 
porte  en  realite  chez  les  Tumbabas  le  nom  de  Kabun  et  chez  les  Ambe- 
nos  celui  de  Leos,  repond  entierement  a I’intention  des  Parties  con- 
tractantes,  qui  etait  de  suivre,  a partir  du  point  A,  un  affluent  venant 
du  nord  dans  la  direction  AC.  L’erreur  de  nom  a d’autant  moins  de 
portee  que,  tres  frequemment  dans  la  region,  les  cours  d’eau  portent 
plusieurs  noms,  ou  changent  de  nom,  ou  portent  le  nom  de  la  contree 
qu’ils  traversent;  or  la  region  a Test  du  Kabun  ou  Leos  (I’Oe  Sunan 
de  1904)  porte,  d’apres  le  Gouvernement  portugais,  le  nom  a conson- 
nance  analogue  d’Hue  Son,  et  d’apres  les  commissaires  neerlandais 
celui  de  Sunan,  ce  qui  peut  expliquer  I’erreur  des  commissaires. 


580 


ORIGINAL  TEXTS 


4.  Les  chefs  indigenes  de  I’Amakono  (neerlandais)  ont  declare 
(commission  mixte,  seance  du  21  fevrier  1899)  que  leur  pays  com- 
prend  toute  la  region  “situee  entre  I’Oe  Sunan,  Nipani,  Kelali-Keli,  et 
la  Noel  Meto  (a  I’ouest),  la  mer  de  Timor  (au  nord),  la  Noel  Boll 
Bass,  les  sommets  Humusu  et  Kin  Napua  (a  Test),  Tasona,  la  Noel 
Boho  et  la  Noel  Bilomi  (au  sud).”  Or  la  frontiere  occidentale  decrite 
id  et  indiquee  des  1899  comme  separant  les  Amakonos  (neerlandais) 
de  I’Ambeno  (portugais)  est  precisement  celle  qui  a de  consacree  par 
le  traite  de  1904.  L’Oe  Sunan  qui  y figure  ne  peut  dre  que  le  cours 
d’eau  auquel  on  a donne  a tort  mais  d’un  commun  accord  ce  nom 
dans  les  cartes  officielles  de  1899  et  de  1904,  c’est-a-dire  un  cours  d’eau 
situe  a I’ouest  du  territoire  conteste,  et  non  le  prdendu  Oe  Sunan 
actuellement  invoque  par  le  Portugal,  et  qui  est  situe  sur  la  frontiere 
orientale  du  territoire  conteste.  Le  traite  de  1904  a attribue  aux 
Pays-Bas  ce  terri*^oire  conteste.  C’est  done  bien  le  cours  d’eau,  peu 
importe  son  nom,  situe  a I’ouest  dudit  territoire  que  les  parties  ont 
entendu  adopter  comme  limite. 

La  preuve  que  le  Portugal  n’a  pu,  en  1899  et  1904,  avoir  en  vue  la 
livide  orientale  a laquelle  il  donne  maintenant  le  nom  d’Oe  Sunan, 
est  foumie  par  le  fait  qu’a  la  seance  du  21  fevrier  1899,  ses  commis- 
saires  ont  propose  comme  limite  une  ligne  partant  du  point  ou  la 
riviere  appelee  alors  Oe  Sunan  se  jette  dans  la  Bilomi  et  remontant 
ensuite  vers  Test  la  Nod  Bilomi  jusqu’a  Nunkalai  (puis  traversant 
Tasona  et,  a partir  de  Kin  Napua  se  dirigeant  vers  le  nord  jusqu’a 
Humusu  et  a la  source  de  la  Nod  Boll  Bass  dont  le  cours  aurait  servd 
de  frontiere  jusqu’a  son  embouchure  dans  la  mer).  Cette  proposition 
portugaise  de  1899  serait  incomprehensible  s’il  s’agissait  d’une  riviere 
autre  que  celle  figurant  sur  les  cartes  officielles  de  1899  et  1904  sous 
le  nom  d’Oe  Sunan ; comment  pourrait-il  etre  question  d’une  autre 
riviere  Oe  Sunan  situee  a Vest  de  Nunkalai,  alors  que  Nunkalai  est,  en 
realite,  a Vouest  de  ce  nouvel  Oe  Sunan  decouvert  par  les  Portugais 
et  non  pas  a Test  ? 

5.  Deux  enqudes  recentes  institutes  par  les  autorites  neerlandaises 
de  I’ile  de  Timor  ont,  d’ailleurs,  confirme  qu’aucune  riviere  du  nom 
d’Oe  Sunan  ne  prend  sa  source  sur  le  mont  Kinapua ; la  riviere  qui 
prend  sa  source  sur  le  versant  nord,  a une  certaine  distance  du 
sommet,  porte  les  noms  de  Poeamesse  ou  de  Noiepolan  et  se  jette  a 
Fatoe  Metassa  (Fatu  Mutassa  des  Portugais)  dans  la  Nod  Manama, 
la  Ni  Fullan  des  cartes  portugaises  (Second  Memoire  neerlandais, 
chiffre  VII,  page  6). 

6.  II  est  exact  que  la  ligne  proposee  par  les  Pays-Bas  ne  traverse  pas 
le  territoire  de  Nipani,  mais  le  traite  de  1904  ne  I’exige  pas.  II  stipule 
que  la  ligne  destinee  a relier  la  source  de  I’Oe  Sunan  a la  source  de  la 
Noel  Meto  traversera  “autant  que  possible  Nipani.”  Comme  le  terri- 
toire a ddimiter  etait  inexplore,  les  mots  “autant  que  possible”  etaient 
justifies ; en  fait,  la  ligne  suggeree  par  les  Pays-Bas,  si  elle  ne  traverse 
pas  tout  le  territoire  de  Nipani,  en  traverse  I’extremite  occidentale 
pelee  Fatu  Nipani.  Or,  d’apres  les  declarations  consignees  au  proces- 


THE  ISLAND  OF  TIMOR  CASE 


581 


verbal  de  delimitation  du  21  fevrier  1899,  les  indigenes,  en  designant 
rOe  Sunan,  Nipani,  Kelali  et  la  Noel  Meto  comme  la  frontiere  orien- 
tale  de  I’Okussi  Ambeno  (portugais)  et  comme  la  frontiere  occidentale 
de  I’Amakono  (neerlandais),  avaient  eu  en  vue  la  masse  rocheuse  de 
Fatu  Nipani  formant  I’extremite  occidentale  de  Nipani. 

7.  La  frontiere  proposee  par  les  Pays-Bas  est  une  frontiere  naturelle 
formee  par  une  chaine  de  montagnes  separant  partout  les  cours  d’eau. 

II  n’a  jamais  ete  prescrit  ou  recommande  en  1902-1904  de  suivre 
avant  tout  des  cours  d’eau  comme  limite,  et,  sur  la  frontiere  meri- 
dionale  de  I’Okussi-Ambeno,  on  a,  sur  plusieurs  points,  notamment 
lorsque  la  ligne  passait  du  bassin  d’une  riviere  dans  un  autre,  place 
des  bornes  d’un  commun  accord  (Voir  notamment  I’art.  3 de  la  Con- 
vention de  1904,  chiffres  2,  3 et  4). 

II  suffira  aussi  de  quelques  bornes  pour  delimiter  la  frontiere  sur 
la  ligne  de  faite  proposee  par  les  Pays-Bas. 

Le  trace  reclame  par  le  Portugal  exigerait  d’ailleurs  lui  aussi  des 
bornes  dans  la  region  du  mont  Kinapua  entre  la  Bilomi  et  le  pretendu 
nouvel  Oe  Sunan,  et  en  outre  dans  la  region  entre  la  source  de  la  Noel 
Meto  et  la  riviere  a laquelle  les  Portugais  donnent  le  nom  de  Ni  Fulan 
c’est-a-dire  aux  deux  extremites  du  trace  portugais. 

8.  La  ligne  que  le  Portugal  propose  aujourd’hui  reproduit  en  sub- 
stance ses  pretentions  de  1899  et  de  1902  dans  cette  region.  Or  il  est 
incontestable  qu’en  acceptant  a la  Conference  de  1902  et  en  consignant 
dans  le  traite  de  1904  la  ligne  AC,  le  Portugal  a cede  un  territoire 
auquel  il  pretendait  auparavant.  II  ne  saurait  equitablement  revendi- 
quer  aujourd’hui  ce  meme  territoire. 

V 

Les  regles  de  droit  applicables 

A teneur  de  I’article  2 du  compromis,  I’arbitre  doit  baser  sa  decision 
non  seulement  sur  les  traites  en  vigueur  entre  les  Pays-Bas  et  le  Por- 
tugal relatifs  a la  delimitation  de  leurs  possessions  dans  I’ile  de  Timor, 
mais  aussi  sur  “les  principes  generaux  du  droit  international.” 

Il  est  presque  superflu  de  rappeler  ces  principes. 

Heffter,  Volkerrechts,  §94,  s’exprime,  par  exemple,  comme  suit: 
“Tous  les  traites  obligent  a I’execution  loyale  et  complete,  non  pas 
seulement  de  ce  qui  a ete  litteralement  promis,  mais  de  ce  a quoi  on 
s’est  engage,  et  aussi  de  ce  qui  est  conforme  a I’essence  de  tout  traite 
quelconque  comme  a I’intention  concordante  des  contractants  (c’est- 
a-dire  a ce  qu’on  appelle  I’esprit  des  traites).”  Heffter  ajoute  §95: 
“L’interpretation  des  traites  doit,  sans  le  doute,  se  faire  conformement 
a I’intention  reciproque  constatable,  et  aussi  conformement  a ce  qui 
peut  etre  presume,  entre  Parties  agissant  loyalement  et  raisonnable- 
ment,  avoir  ete  promis  par  I’une  a I’autre  a teneur  des  termes  em- 
ployes.” 

Rivier,  Principes  du  droit  des  gens,  II,  N°.  157,  formule  les  memes 
pensees  dans  les  termes  suivants:  “11  faut  avant  tout  constater  la 


582 


ORIGINAL  TEXTS 


commune  intention  des  parties : id  quod  actum  ...  La  bonne 
foi  dominant  toute  cette  matiere,  les  traites  doivent  etre  interpretes 
non  pas  exclusivement  selon  leur  lettre,  mais  selon  leur  esprit  . . . 

Les  principes  de  I’interpretation  des  traites  sont,  en  somme,  et  mutatis 
mutandis,  ceux  de  I’interpretation  des  conventions  entre  particuliers, 
principes  de  bon  sens  et  d’experience  formules  deja  par  les  Prudents 
de  Rome”  (Ulpien,  L.  34,  au  Digeste  De  R.  J.  50.17 : “Semper  in  stipu- 
lationibus  et  in  ceteris  contractibus  id  sequimur  quod  actum  est”). 

Entre  particuliers,  les  regies  auxquelles  Rivier  renvoie  ont  ete 
formulees  dans  les  principaux  codes  en  termes  suffisamment  precis 
pour  se  passer  de  commentaires : 

Code  civil  frangais,  neerlandais,  etc.,  art.  1156-1157.  “On  doit  dans 
les  Conventions  rechercher  quelle  a ete  la  commune  intention  des 
parties,  plutdt  que  de  s’arreter  au  sens  litteral  des  termes.  Lorsqu’une 
clause  est  susceptible  de  deux  sens,  on  doit  plutot  I’entendre  dans  celui 
avec  lequel  elle  pent  avoir  quelque  effet,  que  dans  le  sens  avec  lequel 
elle  n’en  pourrait  produire  aucun.”  Code  civil  allemand  de  1896,  art. 
133 : “Pour  I’interpretation  d’une  declaration  de  volonte,  il  faut 
rechercher  la  volonte  reelle  et  tie  pas  sen  tenir  au  sens  litteral  de  I’ex- 
pression  (Bei  der  Auslegung  einer  Willenserklarung  ist  der  wirkliche 
Wille  zu  erforschen  und  nicht  an  dem  buchstablichen  Sinne  des  Aus- 
drucks  cu  haften.”  Code  civil  portugais  de  1867,  art.  684.  Code 
suisse  des  obligations  de  iQii,  art.  18:  “Pour  apprecier  la  forme  et 
les  clauses  d’un  contrat,  il  y a lieu  de  rechercher  la  reelle  et  commune 
intention  des  parties,  satis  s’arreter  aux  expressions  ou  deneminatiotis 
inexactes  dont  elles  ont  pu  se  servir,  soit  par  etreur,  soit  pour  deguiser 
la  nature  veritable  de  la  Convention.” 

Il  est  inutile  d’insister,  le  droit  des  gens  comme  le  droit  prive  etant 
sur  ce  point  entierement  concordants. 

Il  ne  reste  plus  qu’a  faire  application  aux  circonstances  de  la  cause 
de  ces  regies  et  a rechercher  quelle  a ete  la  reelle  et  commune  intention 
des  Pays-Bas  et  du  Portugal  lors  des  negociations  de  1902  qui  ont 
abouti  a la  Convention  de  1904. 


VI 

L^intention  des  Parties  en  signant  la  Convention  de  1904 

1.  Le  traite  de  Lisbonne  du  10  juin  1893  avait  eu  pour  but  de 
chercher  a etablir  une  demarcation  plus  claire  et  plus  exacte  des 
possessions  respectives  dans  I’ile  de  Timor  et  de  faire  disparaitre  les 
“enclaves  actuellement  existantes”  (art.  I").  Les  “enclaves”  figurant 
sous  ce  nom  au  traite  anterieur  signe  a Lisbonne  le  20  avril  1859, 
etaient  celles  de  Maucatar  (art.  2.  premier  alinea)  et  d’Oi  Koussi  (art. 
2.  second  alinea,  et  art.  3,  premier  alinea). 

Lorsqu’en  juin  1902,  les  Delegues  des  deux  Gouvernements  se 
reunirent  a La  Haye  pour  chercher  a concilier  les  propositions  diver- 
gentes  des  commissaires  delimitateurs  envoyes  sur  les  lieux  en  189B- 
1899,  les  delegues  furent  immediatement  d’accord  pour  attribuer  au 


THE  ISLAND  OF  TIMOR  CASE 


583 


Portugal  I’enclave  neerlandaise  de  Maucatar  au  centre  de  Tile  de 
Timor,  et  aux  Pays-Bays  I’enclave  portugaise  de  Noimuti,  au  sud  du 
“royaume”  d’Ambeno.  A la  seance  du  26  juin,  les  Portugais  demande- 
rent,  au  milieu  de  I’ile,  toute  la  partie  du  territoire  de  Fialarang  situee 
a Test  de  la  riviere  Mota  Bankarna  (voir  la  carte  annexe  II)  ; ils 
soutinrent  en  outre  que  le  royaume  d’Ambeno  confinant  a la  mer  ne 
pouvait  pas  plus  etre  considere  comme  une  enclave  que  la  Belgique, 
le  Portugal  ou  les  Pays-Bas  et  qu’il  ne  pouvait  done  etre  question  de 
I’attribuer  a la  Neerlande;  ils  revendiquerent  aussi  pour  I’Ambeno  tout 
le  Hinterland  de  la  cote  comprise  au  nord  entre  les  embouchures  de  la 
Noel  Meto  et  de  la  Noel  Boll  Bass.  Ce  Hinterland  devait  s’etendre 
au  sud  jusqu’a  la  riviere  Noel  Bilomi  et  suivre  cette  riviere  de  I’ouest 
a I’est  entre  le  point  auquel  les  commissaires  delimitateurs  s’etaient,  a 
I’ouest,  arretes  en  1899  et,  a Test,  un  lieu  denomme  Nunkalai  sur  la 
carte  dessinee  alors  en  commun  par  les  commissaires  delimitateurs 
des  deux  Pays. — Les  limites  de  ce  territoire  conteste  ayant  ete  des- 
signees  par  les  quatre  lettres  A B C D sur  une  carte  (voir  annexe  II) 
presentee  par  les  Delegues  neerlandais  a la  Conference  de  1902  la  dis- 
cussion s’engagea  sur  la  ligne  occidentale  AC  preconisee  par  les  Pays- 
Bas,  et  la  ligne  orientale  BD  reclamee  par  le  Portugal. 

Sur  la  carte  ci-annexee  sous  N“.  IV,  on  a reproduit  les  pretentions 
respectives,  telles  qu’elles  resultent  de  la  carte  signee  en  commun  par 
tons  les  commissaires  delimitateurs,  a Koepang,  le  16  fevrier  1899. 

Les  delegues  neerlandais  declarerent  a la  Conference  du  26  juin 
1902  que  les  chefs  du  territoire  de  Fialarang,  au  milieu  de  Tile  de 
Timor,  se  refusaient  absolument  a passer  sous  la  souverainete  du 
Portugal,  en  sorte  qu’il  n’etait  pas  ou  n’etait  plus  possible  de  supprimer 
cette  pointe  que  le  territoire  neerlandais  fait  dans  cette  region  en  terri- 
toire portugais  (Voir  carte  II). 

Le  premier  del^ue  portugais  repliqua  qu’il  ne  fallait  pas  trop  se 
“laisser  guider  par  des  preoccupations  d’humanite  envers  les  peuples 
de  I’ile  de  Timor;  pour  des  cas  peu  graves,  ces  tribus  quittent  leur  sol 
natal  pour  s’etablir  ailleurs,  et  ils  ont  plusieurs  fois  quitte  le  territoire 
neerlandais  pour  s’etablir  dans  le  territoire  portugais  et  inversement.” 
Finalmente,  le  Delegue  portugais  renonga  au  territoires  des  Fialarangs 
au  milieu  de  I’ile  de  Timor,  mais  demanda  que  la  frontiere  orientale  de 
rOikoussi  fut  fixee  “selon  la  proposition  des  commissaires  neer- 
landais de  1899.”  (Voir  cette  proposition  dans  le  proces-verbal  de  la 
seance  tenue  a Koepang  le  8 fevrier  1899  dans  le  premier  Memoire  por- 
tugais, p.  24.) 

Le  lendemain  27  juin,  le  premier  Delegue  neerlandais  accepta  la 
proposition  portugaise,  mais,  pour  eviter  tout  malentendu,  reclama 
pour  son  Gouvemement  “la  certitude  absolue  que  la  limite  orientale 
d’Okussi  representee  par  la  ligne  A C sera  demarquee  autant  que  pos- 
sible sur  le  terrain  meme.” 

II  y avait,  en  effet,  malentendu,  car  le  premier  del^ue  portugais 
repondit  que  sa  proposition  de  la  veille  “ne  disait  pas  que  la  frontiere 
a Test  d’Oikussi  sera  formee  par  la  ligne  A C,  mais  au  contraire  par 


584 


ORIGINAL  TEXTS 


la  ligne  prop9see  par  la  commission  mixte  de  1899  et  indiquee  par  les 
lettres  A B.” 

Le  premier  delegue  neerlandais  repliqua  aussitot  que,  “si  la  ligne 
AC  n’est  pas  acceptee  comme  frontiere  a Test  d’Oikoussi  (et  si  les 
demandes  neerlandaises  pour  la  frontiere  au  centre  de  Timor  ne  sont 
pas  agreees)  ...  les  del%ues  neerlandais  retirent  leurs  consente- 
ment  a la  proposition  portugaise  . . . Jamais  ils  ne  pourraient 

soumettre  a leur  Gouvernement  un  projet  ne  satisfaisant  pas  a ces 
conditions.” — Le  delegue  neerlandais  termina  en  declarant  que,  si  un 
accord  amiable  sur  ces  bases  n’intervenait  pas,  les  Pays-Bas  recour- 
raient  a I’arbitrage  prevu  par  la  Convention  de  1893  sur  la  “question 
des  enclaves,”  donnant  ainsi  a entendre  qu’en  cas  de  refus  de  la  ligne 
A C pour  la  frontiere  orientale  de  I’Ambeno,  les  Pays-Bas  soule- 
veraient  la  question  beaucoup  plus  vaste  de  savoir  si  la  totalite  de 
I’Ambeno  n’etait  pas  une  enclave  pouvant  revenir  logiquement  a la 
Neerlande,  puisque  I’Ambeno  avait  ete  a plusieurs  reprises  designe 
comme  enclave  dans  le  traite  de  1859  et  puisqu’un  des  buts  de  la  Con- 
vention de  1893  etait  la  “suppression  des  enclaves.” 

A la  seance  du  28  juin,  les  delegues  portugais  “ayant  examine 
serieusement  la  proposition  des  delegues  neerlandais,  emise  dans  la 
seance  du  27  juin,  ont  resolu  d’accepter  cette  proposition,  ainsi  que 
les  conditions  posees  par  eux  (par  les  delegues  neerlandais)  a ce 
sujet.” 

II  importait  de  reproduire  avec  details  cette  discussion,  parce 
qu’elle  jette  un  jour  decisif  sur  la  reelle  et  commune  intention  des 
Parties. — Le  Portugal  s’est  declare  satisfait  de  la  situation  qui 
lui  etait  offerte.  Au  milieu  de  I’ile  de  Timor,  il  gagnait  la  grande 
enclave  de  Maukatar;  s’il  n’y  gagnait  pas  le  pays  des  Fialarangs, 
i!  conservait  dans  I’ouest  de  Tile  de  Timor  I’Oikussi  Ambeno  et 
evitait  d’avoir  a discuter  devant  des  arbitres  la  question  delicate 
de  savoir  si  ce  royaume  etait  ou  non  une  “enclave”  susceptible 
d’etre  attribuee  en  entier  aux  Pays-Bas ; le  Portugal  a prefere  dans 
ces  circonstances  renoncer  a la  partie  orientale  contestee  de  I’Oikussi 
Ambeno  plutot  que  de  risquer  d’y  perdre  davantage  ou  meme  d’y 
perdre  tout ; il  a trouve,  en  un  mot,  dans  I’ensemble  de  la  negocia- 
tion,  des  compensations  jugees  par  lui  suffisantes  a I’abandon  de 
la  ligne  B D et  de  la  ligne  intermediaire  A B qu’il  reclamait. — Il  a 
finalement  accepte  la  ligne  A C reclamee  sine  qua  non  par  les  Pays- 
Bas. 

Il  est  done  certain  que  cette  ligne  A C doit,  dans  I’intention  des 
Parties,  etre  consideree  comme  une  concession  faite  par  le  Portugal 
txcx  Pays-Bas  et  ce  fait  a ete  proclame  par  les  Delegues  portugais 
eux-memes  dans  le  Memoire  qu’ils  ont  remis  a la  seance  du  26  juin 
1902^  au  cours  des  Conferences  de  La  Haye,  en  ces  termes;  “ces  terri- 
toires  representent  une  reduction  considerable  des  frontieres  du  roya- 
ume d’Oeussi-Ambenou.” 

2.  Qu’est-ce  que  la  ligne  AC? 

o)  Et  d’abord  ou  est  le  f)oint  C?  A I’embouchure  de  la  riviere  Noel 
Meto  dans  la  mer  de  Timor  au  nord  de  Tile.  Aucune  contestation 


THE  ISLAND  OF  TIMOR  CASE 


585 


n’existe  a ce  sujet,  et  la  Convention  de  1904,  article  3,  chiffre  10,  stipule 
expressement  que  la  frontiere  suit  le  thalweg  de  la  Noel  Meto  de  sa 
source  a son  embouchure. — Entre  1899  et  1902-1904,  le  Portugal 
pretendait  au  contraire  a tout  le  territoire  a Test  de  la  Noel  Meto 
jusqu’a  la  riviere  Noel  Boll  Bass ; I’embouchure  de  la  Noel  Boll  Bass 
etait  le  point  B,  terminus  nord  de  la  ligne  A B revendiquee  par  le 
Portugal  (Proposition  portugaise,  seance  du  21  fevrier  1899,  2® 
Memoire  neerlandais  annexe  II,  Proces-verbaux  des  Conferences  de 
La  Haye  1902,  page  10,  et  cartes  ci-annexees  I et  II). 

Si  I’emplacement  du  point  C n’est  pas  conteste,  il  est  cependant  utile 
de  constater  que  I’adoption  en  1904,  comme  ligne  de  demarcation,  du 
cours  de  la  Noel  Meto  plutot  que  du  cours  de  la  Noel  Boll  Bass 
prouve  I’intention  generale  de  ramener  la  frontiere  vers  I’ouest. 

b)  L’emplacement  de  la  source  de  la  Noel  Meto  a ete  determine  et 
une  borne  y a ete  plante  d’un  commun  accord  (proces-verbal  du  14 
juin  1909,  1®‘‘  Memoire  portugais,  page  26).  Toute  cette  partie  du 
trace  est  ainsi  definitivement  reglee.  (Voir  carte  annexe  VI.) 

c)  Ou  est  maintenant,  a I’autre  extremite  de  la  ligne,  le  point  A 
convenu  a la  Conference  de  1902?  Les  Pays-Bas  soutiennent  que  ce 
point  A se  trouve  la  ou  se  termina  la  reconnaissance  de  1899  et  ou  les 
commissaires  durent  arreter  leurs  travaux  a cause  d’hostilite  entre  les 
tribus  indigenes,  c’est-a-dire  au  point  ou  les  commissaires  apres  avoir 
suivi  la  Nono  Balena,  la  Nono  Nive  et  la  Noel  Bilomi,  ont  atteint  le 
confluent  de  cette  derniere  riviere  avec  une  autre  venant  du  nord  et  a 
laquelle  avait  ete  attribue  d’un  commun  accord  le  nom  d’Oe  Sunan. 

Toute  la  ligne  de  demarcation  dans  cette  partie  occidental  et  in- 
ferieure  du  bassin  de  la  Bilomi  a ete  sanctionee  et  definitivement  admise 
comme  frontiere  par  le  traite  de  1904,  article  3,  chiffre  9.  Lors  de 
la  reconnaissance  posterieure  du  17  juin  1909,  il  est  constate  au  proces- 
verbal  que  ce  point  n’est  pas  douteux:  “On  decide  unanimement  que 
de  ce  point,  c’est-a-dire  le  point  oil  la  commission  de  i8gg  a termini 
son  travail,  I’arpentage  sera  poursuivi.”  (1®''  Memoire  neerlandais, 
annexe  III,  page  4,  1®''  Memoire  portugais,  page  27.)  La  divergence 
se  produit  seulement  sur  ce  qu’il  y a lieu  de  faire  d partir  de  ce  point, 
soit  vers  le  nord  (demande  neerlandaise)  soit  dans  la  direction  de 
Test  (demande  portugaise).  Or  ce  point,  celui  auquel  les  travaux 
avaient  ete  suspendus  en  1899,  celui  a partir  duquel  des  divergences 
s’etaient  produites  entre  1899  et  1902,  a ete  marque  sur  la  carte  officielle 
signee  contradictoirement  par  les  commissaires  delimitateurs  des  deux 
Pays  le  16  fevrier  1899;  c’est  ce  meme  point  qui  a ete  envisage  lorsqu’a 
la  Conference  de  La  Haye  de  1902,  les  delegues  des  deux  Etats  ont 
solutionne  le  differend  en  se  pronongant  pour  une  frontiere  se  dirigeant 
vers  le  nord  et  designee  sous  le  nom  de  ligne  A C.  En  plagant  cette 
carte  du  16  fevrier  1899  (annexe  IV  ci-jointe)  sous  la  carte  annexee 
a la  Convention  de  1904  (annexe  III  ci-jointe),  on  constate  qu’il  y a 
concordance  absolue  entre  elles  quant  a I’emplacement  du  point  dont 
il  s’agit. 

Le  Gouvernement  portugais  ne  conteste  d’ailleurs  pas  tres  vive- 
ment  I’emplacement  du  point  A,  car  dans  son  premier  Memoire  il 


586 


ORIGINAL  TEXTS 


s’exprime  comme  suit,  page  10 : “On  ne  pretend  pas  nier  que  la  ligne 
ne  part  du  point  A,  auquel  se  rapportent  les  proces-verbaux  des  nego- 
ciations,  vers  le  point  C.  Ce  qu’on  discute,  ce  sont  ses  inflexions 
subordonnees  . . et  plus  loin,  page  15:  “On  ne  conteste  pas  que 
la  frontiere  dont  il  s’agit  ne  parte  du  point  ou  les  arpenteurs  ont  ete 
empeches  d’aller  plus  loin : ce  qu’on  nie,  c’est  qu’on  ait  eu  I’intention  de 
la  diriger  de  Id  directement  vers  le  nord.” 

De  ce  qui  precede,  il  resulte  pour  I’arbitre  la  certitude  que  trois 
points  de  la  ligne  A C sont  dument  etablis,  incontestables  et  meme 
incontestes : le  point  C au  nord,  la  source  de  la  Noel  Meto  au  milieu  et 
le  point  A au  sud,  a I’endroit  ou  les  travaux  de  delimitation  ont  ete 
suspendus  en  1899.  Ces  trois  points  correspondent  certainement  a 
I’intention  des  Parties  lorsqu’elles  ont  negocie  le  projet  de  convention 
de  1902  et  I’ont  transforme  en  convention  en  1904.  Admettre  une 
autre  solution  quant  a I’emplacement  du  point  A serait  d’ailleurs  remet- 
tre  en  question  la  frontiere  convenue  pour  le  cours  inferieur  de  la 
Noel  Bilomi  par  le  chiffre  9 de  I’article  3 du  traite  de  1904;  or  ce 
chiflFre  9 n’est  pas  conteste  et  n’est  pas  en  cause. 

3.  Il  reste  a examiner  maintenant  la  partie  de  la  ligne  A C comprise 
entre  le  point  A au  sud  et  la  source  de  la  Noel  Meto  au  milieu  de  cette 
ligne  A C. 

Ici  encore  et  toujours,  il  faut  rechercher  I’intention  reelle  et  concor- 
dante  des  Parties  au  moment  ou  elles  ont  contracte: 

En  1902,  deux  propositions  etaient  en  presence:  Celle  du  Portugal 
avait  ete  formulee  comme  suit  dans  le  proces-verbal  de  la  seance  des 
commissaires  delimitateurs  tenue  a Koepang  le  21  fevrier  1899  (annexe 
II  au  2“*  Memoire  neerlandais)  : “De  ce  dernier  point  (le  point  A), 
le  long  de  la  Noel  Bilomi  jusqu’a  Nunkalai,  de  la  traversant  Tasona, 
Kin  Napua,  Humusu,  jusqu’a  la  source  de  la  Noel  Boll  Bass ; puis  le 
long  de  cette  riviere  jusqu’a  I’embouchure.’’  Aux  Conferences  de  La 
Haye  de  1902,  ce  trace  (D  B)  fut  abandonne  des  la  seance  du  26  juin 
par  la  Delegation  portugaise  et  remplace  par  la  demande  d’un  trace 
intermediaire  et  diagonal  A B qui  prenait  pour  frontiere  au  nord-est 
le  cours  de  la  Noel  Boll  Bass  au  lieu  de  la  Noel  Meto  (voir  la  carte 
ci-jointe  II).  Le  28  juin,  la  delegation  portugaise  abandonnait  cette 
ligne  de  retraite  A B,  reculait  vers  I’ouest  de  la  Noel  Boll  Bass  a la 
Noel  Meto  (voir  carte  ci-jointe  II),  et  acceptait  la  ligne  A C reclamee 
par  les  Pays-Bas.  Cette  ligne  A C etait  aussitot  tracee  sur  une  carte  qui 
a ete  annexee  officiellement  au  traite  de  1904  (voir  carte  annexe  III). 

Sur  cette  carte,  la  frontiere,  partant  du  point  A auquel  aboutissait 
la  frontiere  incontestee  du  cours  inferieur  de  la  Noel  Bilomi  remonte 
dans  la  direction  du  nord  le  cours  d’un  petit  affluent  appele  d’un  com- 
mun  accord  Oe  Sunan,  puis  continue  vers  le  nord  jusqu’a  I’emplace- 
ment,  alors  inconnu,  de  la  source  de  la  Noel  Meto.  Ce  trace  de  la  carte 
etait  defini  et  commente  comme  suit  dans  le  traite,  art.  3,  chiffre  10: 
“a  partir  de  ce  point  (A),  la  Hmite  suit  le  thalweg  de  I’Oe  Sunan, 
traverse  autant  que  possible  Nipani  et  Kelali  (Keli),  gagne  la  source 
de  la  Noel  Meto  et  suit  le  thalweg  de  cette  riviere  jusqu’a  son  em- 
bouchure.” Or  ce  texte,  devenu  definitif  dans  le  traite  de  1904,  est  la 


THE  ISLAND  OF  TIMOR  CASE 


587 


reproduction  mot  a mot  du  texte  propose  par  les  commissaires  neer- 
landais  a cette  meme  seance  de  Koepang,  21  fevrier  1899,  en  opposition 
aux  pretentions  portugaise  d’alors.  La  simple  mise  en  regard  de  ces 
deux  cartes  et  le  fait  qu’en  1902-1904,  la  proposition  portugaise  a ete 
totalement  ecartee  et  la  proposition  neerlandaise  inseree  mot  a mot, 
suffit  a etablir  avec  evidence  I’intention  des  Parties  contractantes : 
lorsqu’elles  ont  negocie  et  signe  Taccord  de  1904,  elles  ont  adopte  le 
trace  neerlandais  et  ecarte  le  trace  desire  par  le  Portugal  sur  cette 
partie  des  frontieres  des  deux  Ltats  dans  I’ile  de  Timor.  Les  deux 
parties  ont  done  eu,  dans  la  pensee  de  I’arbitre,  la  volonte  reelle  et 
concordante  d’adopter  le  trace  plus  occidental,  non  seulement  sur  le 
versant  nord  de  I’ile  entre  la  Noel  Boll  Bass  et  la  Noel  Meto,  mais 
aussi  dans  le  centre  de  Tile,  entre  le  cours  de  la  Noel  Bilomi  et  la 
source  de  la  Noel  Meto. 

II  convient  maintenant  d’entrer  dans  les  details  de  I’examen  de  ce 
trace  le  plus  occidental : 

4.  Le  Portugal  fait  observer  aujourd’hui  que  le  cours  d’eau  denomme 
Oe  Sunan  sur  les  cartes  officielles  de  1899  et  de  1904  et  dans  I’art.  3, 
chiffre  9,  du  traite  de  1904,  n’existe  pas ; que  ce  cours  d’eau  porte  en 
realite  le  nom  de  Kabun  chez  les  membres  de  la  tribu  des  Tumbabas 
ou  de  Leos  chez  les  membres  de  la  tribu  des  Ambenos,  et  que  le 
veritable  Oe  Sunan  se  trouve  a six  ou  sept  kilometres  plus  a Test.  II 
est  vrai,  ajoute  le  Gouvemement  portugais,  que  cet  autre  Oe  Siman 
n’est  pas  un  affluent  de  la  riviere  Bilomi,  qu’il  prend  sa  source  a une 
certaine  distance  de  cette  riviere,  sur  le  versant  nord  du  Mont  Kinapua, 
mais  cet  autre  Oe  Sunan  et  le  Mont  Kinapua  sont  revendiques  par  les 
Ambenos  (portugais)  comme  formant  d’ancienne  date  la  frontiere 
entre  eux  a I’ouest  et  les  Amakonos  neerlandais  a Test.  C’est  done 
bien,  dans  la  pensee  du  Gouvemement  portugais,  a cet  autre  Oe  Sunan 
que  les  deux  Gouvemements  ont  pense  lorsqu’ils  ont,  a I’art.  3,  chiffre 
10,  du  traite  de  1904,  stipule  que  la  frontiere  suivrait  le  cours  de  I’Oe 
Sunan. 

Pour  apprecier  la  portee  de  cette  allegation,  il  y a lieu  de  se  rappeler 
que,  sur  la  carte  dressee  par  les  commissaires  delimitateurs  des  deux 
Pays  le  16  fevrier  1899  a Koepang  (carte  annexe  IV),  la  frontiere 
demandee  alors  par  le  Portugal  est  indiquee  par  un  pointille  en  suivant 
d la  montee  le  cours  presume  de  la  Noel  Bilomi  dans  la  direction  de 
I’est  a partir  du  point  (A)  auquel  les  dits  commissaires  avaient  du 
alor  arreters  leurs  travaux,  e’est-a-dire  a partir  du  confluent  de  la 
Noel  Bilomi  avec  ce  qu’on  app>elait  alors  d’un  commun  accord  I’Oe 
Sunan ; on  a eu  soin,  dans  cette  carte  de  1899,  de  faire  suivre  le 
pointille  des  mots  “Noel  Bilomi,”  pour  bien  indiquer  le  desir  des  com- 
missaires portugais  de  continuer  a suivre,  en  le  remontant,  le  cours 
de  la  riviere. 

D’autre  part,  lors  de  la  signature  du  traite  de  1904,  on  a,  au  con- 
traire,  sur  la  carte  annexee  au  traite,  supprime  tout  ce  pointille  a Test 
du  point  auquel  on  s’etait  arrete  en  1899,  pour  bien  montrer  qu’il  n’y 
avait  plus  lieu  de  continuer  a remonter  dans  la  direction  de  Test  le  cours 
alors  inexplore  de  la  Noel  Bilomi,  et  qu’au  contraire,  la  frontiere 


588 


ORIGINAL  TEXTS 


devait  se  diriger  vers  le  nord  (voir  carte  transparente  annexe  III). 
Cela  implique,  dans  la  pensee  de  I’arbitre,  I’intention  concordante 
d’attribuer,  en  amont  du  point  A,  les  deux  rives  de  la  Noel  Bilomi  aux 
Pays-Bas. 

Un  autre  fait  qui  parait  a I’arbitre  impliquer  la  meme  intention 
concordante  des  Parties  lors  de  la  signature  de  la  Convention  de  1904, 
est  que,  dans  la  description  de  la  frontiere  proposee  en  1899  par  les 
commissaires  portugais,  ils  ont  suggere  de  I’ouest  d Vest  le  trace 
suivant:  “De  ce  dernier  point  (le  confluent  de  la  Noel  Bilomi  avec 
I’affluent  nomme  alors  I’Oe  Sunan)  le  long  de  la  Noel  Bilomi  jusqu’d 
Nunkalai,  de  la  traversant  Tasona,  Kinapua  . . d’apres  cette 

description  portugaise,  Nunkalai  se  trouve  done  a Test  de  la  riviere 
d’Oe  Sunan  et  a I’ouest  de  Kinapua.  Or  I’autre  riviere  Oe-Sunan, 
actuellement  revendiquee  comme  frontiere  par  le  Portugal,  se  trouve 
situee  a plusieurs  kilometres  d Vest  et  non  a I’ouest  de  Nunkalai,  d’ou 
resulte  I’impossibilite  que  cette  riviere  ait  ete  vis^  par  les  delegues 
portugais  dans  leurs  propositions  d’alors. 

Ce  qui  confirme  encore  cette  impression  de  I’arbitre,  e’est  le  fait  que 
le  nouvel  Oe  Sunan,  celui  qui,  six  kilometres  plus  a Test,  a sa  source 
sur  le  versant  septentrional  du  mont  Kinapua,  n’est  pas  un  affluent  de 
la  Noel  Bilomi. 

Enfin,  cet  autre  Oe  Sunan  ne  se  dirige  pas  “vers  Nipani  et  Kelali 
(Keli)“  comme  le  present  le  traite  de  1904,  mais  se  confond  tres  vite 
avec  d’autres  rivieres  se  dirigeant  vers  Test  pour  aboutir  finalement 
dans  des  regions  incontestablement  neerlandaises. 

Tout  cet  ensemble  de  circonstances  concordantes  amene  I’arbitre  a 
la  conviction  qu’il  n’y  a pas  lieu  de  s’arreter  a I’erreur  de  nom  commise 
par  les  commissaires  delimitateurs  en  1899  et  par  les  negociateurs  des 
actes  intemationaux  de  1902  et  1904  lorsqu’ils  ont  donne  au  Kabun 
ou  Leos  le  nom  d’Oe  Sunan,  et  qu’il  y a lieu  au  contraire  d’admettre 
que  e’est  bien  le  Kabun  ou  Leos  que  les  Parties  ont  eu  I’intention  de 
viser  comme  devant  servir  de  frontiere  a partir  du  point  A dans  la 
direction  du  nord.  Cette  erreur  commune  aux  commissaires  des  deux 
Pays  s’explique  d’ailleurs  lorsqu’on  constat  que  la  plupart  des  cours 
d’eau  de  la  region  portent  plusieurs  noms  ou  portent  le  nom  de  la 
region  qu’il  traversent  et  qu’une  region  voisine  du  Kabun  ou  Leos 
p>orte  le  nom  de  Sunan  dont  la  consonnance  se  rapproche  d’Oe  Sunan. 

Admettre  une  autre  solution,  accepter  un  trace  remontant  le  cours 
de  la  Noel  Bilomi  jusqu’au  mont  Kinapua,  puis  passant  dans  le  bassin 
d’un  autre  Oe  Sunan  que  n’est  pas  un  affluent  de  la  Bilomi  et  qui  ne  se 
dirige  pas  vers  Nipani  et  Kelali,  serait  contraire  a tout  I’esprit  de  la 
negociation  de  1902-1904,  et  inconciliable  avec  la  carte  annexee  a 
la  convention  de  1904.  Le  Portugal  ne  saurait  equitablement  revendi- 
quer  apres  coup,  entre  la  Noel  Bilomi  et  la  source  de  la  Noel  Meto  et 
a propos  d’un  bornage,  presque  exactement  le  territoire  auquel  il  a 
expressement  renonce  en  1902-1904  contre  des  compensations  jugees 
par  lui  suffisantes  ou  parce  qu’il  a voulu  eviter  alors  de  la  part  des  Pays- 
Bas  un  appel  a I’arbitrage  ou  des  revendications  plus  etendues  dans  la 
region  d’Okussi  (voir  cartes  annexes  V et  VI). 


THE  ISLAND  OF  TIMOR  CASE 


589 


De  ce  qui  precede,  se  degage,  en  d’autres  termes,  la  conviction  que  la 
volonte  des  Parties  contractantes  doit  etre  interpretee  en  ce  sens  qu’a 
partir  du  point  A situe  sur  la  riviere  Bilomi,  la  frontiere  suit,  dans  la 
direction  du  nord,  le  thalweg  de  la  riviere  Kabun  ou  Leos  jusqu’a  la 
source  de  ce  dernier  cours  d’eau  denomme  a tort  Oe  Sunan  en  1899, 
1902  et  1904. 

Le  raisonnement  expose  ci-dessus  sous  chiffre  4 serait  superflu  si, 
comme  I’affirme  le  Gouvemement  des  Pays-Bas  (Second  memoire, 
chitfre  VII,  page  6)  les  demieres  reconnaissance  faites  sur  place  ont 
etabli  que  ce  nouvel  Oe  Sunan  n’existe  pas  et  que  le  cours  d’eau  auquel 
des  portugais  donnent  ce  nom  s’appelle  en  realite  Noel  Polan  ou 
Poeamesse. 

5.  II  ne  reste  plus  a rechercher  I’intention  des  Parties  que  pour 
la  section  comprise  entre  la  source  de  la  riviere  Kabun  ou  Leos  (de- 
nommee  a tort  Oe  Sunan  de  1899  a 1904)  et  la  source  de  la  Noel  Meto. 

La  Convention  de  1904  s’exprime  comme  suit : “Le  Thalweg  de 

rOe  Sunan  [reconnu  sous  N°  4 ci-devant  devoir  etre  denomme  Kabun 
ou  Leos]  traverse  autant  que  possible  Nipani  et  Kelali  (Keli),  [et] 
gagne  la  source  de  la  Noel  Meto.  . . 

Les  commissaires  delimitateurs  neerlandais  et  leur  Gouvemement 
proposent  de  relier  les  sources  des  rivieres  Kabun  et  Noel  Meto  en 
suivant  presque  exactement  la  ligne  de  partage  des  eaux,  c’est-a-dire 
une  suite  de  sommets  dont  les  principaux  porteraient,  du  sud  au  nord, 
les  noms  de  Netton,  Adjausene,  Niseu  ou  Nisene,  Wanat  ou  Vanate, 
Fatu  Nipani  ou  Fatoe  Nipani,  Fatu  Kabi  (Fatoe  Kabi)  et  Kelali 
(Keli). 

Cette  proposition  est  contestee  par  le  Gouvemement  portugais  parce 
qu’elle  serait  contraire  aux  intentions  des  Parties  dont  le  but  aurait  ete, 
lors  de  la  conclusion  des  traites  entre  les  deux  Gouvernements,  de  ne  pas 
separer  les  Btats  indigenes ; or  cette  ligne  detacherait  de  I’Ambeno  por- 
tugais toute  la  partie  orientale;  le  Gouvemement  portugais  invoque, 
dans  son  premier  et  surtout  dans  les  annexes  de  son  second  Memoire, 
les  depositions  de  nombreux  chefs  indigenes  pour  etablir,  en  substance, 
que  tout  I’espace  qui  serait  attribue  aux  Pays-Bas  fait  partie  de 
I’Ambeno  et  appartient  aux  Ambenos.  II  invoque  en  outre  une  carte 
privee  editee  a Batavia,  sur  laquelle  les  Ambenos  sont  indiques  comme 
occupant  le  territoire  revendique  par  les  Pays-Bas.  Le  Gouvemement 
portugais  est  d’avis  que  I’Ambenu-Oikussi  a incontestablement  ete 
attribue  au  Portugal  par  le  traite  de  1859  et  que  la  tribu  des  Ambenos 
ne  saurait  etre  partagee  entre  deux  souverainetes. 

Une  fois  de  plus,  I’arbitre  doit  chercher  a reconstituer  la  volonte 
des  Parties.  Or  d’apres  le  texte  du  traite  de  1859,  le  Portugal  a obtenu 
seulement  la  “partie”  de  I’fitat  d’Ambeno  qui  “a  arbore  le  pavilion 
portugais” ; il  n’y  aurait  done  rien  d’anormal  a ce  que  certaines  parties 
de  I’Ambeno  eussent  ete  considerees,  des  1859,  comme  restant  sous  la 
souverainete  des  Pays-Bas.  En  outre,  la  carte  privee  editee  a Batavia 
ne  saurait  prevaloir  contre  les  deux  cartes  officielles  signes  par  les 
commissaires  ou  delegues  des  deux  Btats  en  1899  et  en  1904  et  ces 
deux  cartes  officielles  (annexes  III  et  IV)  ne  font  pas  figurer  le  nom 


590 


ORIGINAL  TEXTS 


d’Ambeno  dans  le  territoire  conteste;  I’une  et  I’autre  inscrivent  ce 
nom  a I’ouest  et  en  dehors  du  territoire  conteste.  II  resulte,  d’ailleurs, 
des  documents  foumis  que,  des  1899,  les  commissaires  neerlandais 
produisaient  des  declarations  des  chefs  indigenes  tumbabas  et  amakonos 
assurant  que  ce  territoire  leur  appartenait  et  ne  faisait  pas  parties  de 
I’Ambeno  (annexe  III  au  second  Memoire  neerlandais,  declaration 
faite  a la  seance  tenue  a Koepang  le  21  fevrier  1899).  On  se  trouve 
done  en  presence  d’affirmations  contradictoires  des  indigenes.  Ceux- 
ci  se  battaient  en  1899  depuis  plus  de  vingt  ans  (premier  Memoire 
portugais,  p.  22),  lors  de  Tarrivee  dans  cette  region  des  commissaires- 
delimitateurs,  et  le  Gouvemement  portugais  reconnait  (dans  son 
premier  Memoire,  p.  9)  comme  “certain  que  les  peuples  a I’Est  de 
rOikussi  Ambeno  se  disputent  depuis  longtemps  les  territoires  con- 
tigus  et  que  ces  peuples  se  trouvent  de  telle  sorte  entremeles,  qu’il  est 
difficile  de  distinguer  ce  qui  leur  appartient  en  realite.”  Voir  aussi 
dans  le  second  Memoire  portugais,  p.  10,  la  deposition  du  chef  ambeno 
Bene  Necat:  “La  partie  orientale  d’Oikussi  et  d’Ambeno  a ete  habitee 
par  le  peuple  Tumbaba  qui  en  a ete  chasse  il  y a trois  generation  . . . 
par  les  Ambenos.  . . . Depuis  lors  cette  region  est  deserte,  bien  qu’elle 
soit  parcourue  par  les  Tumbabas  et  par  les  Ambenos.” 

L’intention  des  Parties  lors  de  la  negociation  de  1902  se  trouve 
documentee  par  le  proces-verbal  de  la  seance  du  26  juin  (proces- 
verbaux,  page  7)  au  cours  de  laquelle  le  premier  Delegue  portugais  a, 
lui-meme,  conseille  “de  ne  pas  trop  se  laisser  guider  en  cette  matiere 
par  les  preoccupations  d’humanite  envers  les  peuples  dans  Tile  de 
Timor;  pour  des  causes  f>eu  graves,  ces  tribus  quittent  leur  sol  natal 
pour  s’etablir  ailleurs  et  ont  plusieurs  fois  quitte  le  territoire  neerlan- 
dais pour  s’etablir  dans  le  territoire  portugais  et  inversement.”  Le 
lendemain,  proces-verbaux,  page  11,  le  premier  delegue  neerlandais 
faisait  observer  que  son  Gouvemement  faisait  “une  grande  concession” 
en  ne  reclamant  f>as  la  totalite  de  I’Ambeno,  “attendu  qu’a  son  avis  la 
convention  de  1893  impliquait  la  disparition  de  I’enclave  d’Oikussi” ; il 
declarait  que,  si  les  deux  Gouvemements  ne  pouvaient  en  venir  a un 
arrangement  sur  la  base  de  la  ligne  A C proposee  par  les  Pays-Bas, 
ceux-ci  se  verraient  engages  a recourir  a I’arbitrage  pour  etablir  si 
I’Ambeno  n’etait  pas  une  “enclave”  devant  leur  etre  attribute  toute 
entiere,  et  e’est  alors  que,  le  28  juin,  la  delegation  portugaise  accepta 
sans  restriction  ni  reserve  la  ligne  A C telle  qu’elle  etait  reclamee  par 
la  delegation  neerlandaise. 

De  tout  cet  ensemble  de  faits  resulte  pour  I’arbitre  la  conviction 
qu’en  1902-1904,  I’accord  s’est  fait  sans  tenir  compte  du  risque  de 
detacher  telle  ou  telle  parcelle  reclamee  par  les  Ambenos,  les  Tumbabas 
ou  les  Amakonos  et  en  constatant  expressement  qu’on  ne  se  pr^ccu- 
perait  pas  des  pretentions,  d’ailleurs  contradictoires,  des  indigenes. 
Des  proces-verbaux  de  1902  resulte,  en  d’autres  termes,  pour  I’arbitre, 
le  conviction  que  le  Portugal  a accepte  la  ligne  A C telle  qu’elle  etait 
reclamee  par  les  Pays-Bas,  precisement  parce  que  le  Portugal  preferait 
abandonner  des  pretentions  d’ordre  secondaire  a Test  afin  de  conserver 
le  gros  morceau,  e’est-a-dire  afin  de  conserver  ce  que  le  traite  de  1859 


THE  ISLAND  OF  TIMOR  CASE 


591 


avait  appele  r“enclave”  d’Ambeno-Okussi.  C’est  avec  raison  aussi, 
dans  la  pensee  de  I’arbitre,  que  le  Gouvernement  neerlandais  soutient 
dans  son  second  memoire,  page  2,  que  rien  dans  le  traite  de  1859 
ne  s’opposait  a la  division  du  royaume  d’Ambeno  et  ajoute:  “Meme 
si  le  traite  de  1859  n’avait  pas  sanctionne  une  telle  division  . . . le 

Gouvernement  portugais  ne  pourrait  legitimement  s’opposer  d present 
a une  pareille  division.  De  telles  objections  viendraient  trop  tard  et 
auraient  du  etre  elevees  avant  la  conclusion  du  traite  de  1904.” 

L’arbitre  fait  observer  en  outre  que,  sur  les  deux  cartes  officielles 
de  1899  et  de  1904  (annexes  III  et  IV),  le  Nipani  est  indique  comme 
se  trouvant  tres  pres  et  legerement  a Test  de  la  ligne  A C,  a peu  de 
distance  de  la  source  de  I’Oe  Sunan  (aujourd’hui  reconnu  devoir  etre 
appele  Kabun  ou  Leos)  ; si  Ton  adoptait  le  trace  actuellement  reclame 
par  le  Portugal,  ce  trace  passerait  fort  loin  a Test  et  au  nord  du 
Nipani  et  par  consequent  “traverserait”  encore  moins  ce  territoire 
que  le  trace  propose  par  les  Pays-Bas.  II  est  vrai  que  le  Gouveme- 
ment  portugais  place  le  Nipani  (voir  la  carte  annexee  sous  chiffre  VI 
au  premier  Memoire  neerlandais  et  mot  Nipani  inscrit  en  bleu  sur  la 
carte  ci-jointe  annexe  IV)  au  nord-est  du  territoire  conteste,  mais  cette 
carte  unilaterale  portugaise  ne  saurait  etre  opposee  aux  deux  cartes 
officielles  de  1899  et  de  1904  (annexes  III  et  IV),  signees  des  delegues 
des  deux  fitats ; d’ailleurs,  meme  sur  cette  carte  exclusivement  portu- 
gaise, la  frontiere  desiree  par  le  Portugal  semble  tracee  au  nord  de 
Nipani  et  ne  parait  pas  “traverser”  ce  territoire. 

6.  Le  Gouvernement  de  la  Republique  portugaise  objecte  enfin  a 
ce  trace  d’une  ligne  a peu  pres  directe  du  sud  au  nord  entre  la  source 
de  la  riviere  Kabun  ou  Leos  et  la  source  de  la  Noel  Meto,  que  c’est 
une  frontiere  terrestre,  devant  necessiter  la  pose  de  bornes  tandis  que 
la  ligne  orientale  suggeree  par  le  Portugal  est  essentiellement  formee 
par  ime  succession  de  rivieres,  ce  qui  est  preferable  pour  eviter  des 
conflits  entre  les  indigenes.  Dans  la  pensee  de  I’arbitre,  cette  objection 
ne  repose  sur  aucune  indication  resultant  des  negociations  de  1899  a 
1904.  Sur  la  frontiere  meridionale  de  I’Okussi-Ambeno,  la  frontiere 
adoptee  en  1904  est,  sur  un  assez  grand  nombre  de  points,  independante 
des  cours  d’eau  et  a du  ou  pourra  devoir  etre  marquee  sur  le  terrain 
par  des  bornes.  Le  trace  suggere  par  le  Portugal  comporterait,  lui 
aussi,  des  parties  terrestres  et  la  plantation  de  bornes,  notamment  a 
Tangle  sud-est  (aux  environs  du  mont  Kinapua,  entre  le  cours  de  la 
riviere  Bilomi  et  le  cours  de  la  riviere  denommee  Oe  Sunan  par  les 
Portugais),  et  a Tangle  nord-ouest  (entre  la  source  de  la  riviere  appelee 
par  les  Portugais  Ni-Fullan  et  la  source  de  la  Noel  Meto) . 

Le  trace  suggere  par  les  commissaires  neerlandais  parait  a Tarbitre 
constituer  une  frontiere  suffisamment  naturelle  pour  etre  facilement 
delimitable  sur  le  terrain.  II  se  compose  d’une  serie  continue  de 
sommets  assez  eleves,  portant,  du  sud  au  nord,  les  noms  de  Netton, 
Loamitoe,  Adjausene,  Niseu,  Wanat,  Fatoe-Nipani,  Kelalj  ou  Keli,  dont 
Taltitude  est  indiquee  entre  500  et  1,000  metres.  Cette  chaine  sert  de 
ligne  de  partage  des  eaux  et  les  rivieres  a Test  de  cette  ligne  coulent 
vers  Torient.  II  ne  semble  done  pas  qu’il  soit  techniquement  difficile 


592 


ORIGINAL  TEXTS 


de  proceder  a la  delimitation  le  long  de  cette  chaine  de  hauteurs,  dont 
la  direction  generale  repond  entierement  a la  ligne  theorique  A C 
adoptee  d’un  commun  accord  en  1904. 

VII 

Conclusions 

Les  considerations  defait  et  de  droit  qui  precedent  ont  amene 
Tarbitre  aux  conclusions  suivantes: 

1.  Le  traite  de  1859  avait  attribue  au  Portugal,  dans  la  partie  occi- 
dentale  de  Tile  de  Timor,  l’“enclave”  d’Oikussi-Ambenu,  et  les  Pays- 
Bas  ont  cede  alors  au  Portugal  “cette  partie  d’Ambenu  qui,  depuis 
plusieurs  annees,  a arbore  le  pavilion  portugais.” 

2.  La  Convention  de  1893  a eu  pour  but  “d'etablir  d’une  fagon 
plus  claire  et  plus  exacte  la  demarcation”  des  possessions  respectives 
a Timor  et  d’y  “faire  disparaitre  les  enclaves  actuellement  existantes.” 

3.  La  Convention  de  1904  a regularise  la  frontiere  au  centre  de  Tile 
en  attribuant  au  Portugal  I’enclave  neerlandmse  de  Maukatar  et 
d’autres  territoires  contestes,  et  aux  Pays-Bas  au  sud-ouest  de  I’ile, 
I’enclave  portugaise  de  Noemuti.  D’autre  part,  les  Pays-Bas  ont 
renonce,  au  cours  des  negociations  de  1902,  a soulever  la  grosse  ques- 
tion de  savoir  si  I’Oikussi  Ambenu  n’etait  pas,  comme  I’indiquait  le 
traite  de  1859,  une  “enclave”  devant  leur  revenir.  Cet  accord  a eu 
lieu  a la  condition,  expressement  acceptee  par  le  Portugal,  d’adopter, 
pour  la  frontiere  orientale  de  ce  royaume  d’Oikussi  (Ambenu),  la 
ligne  A C reclamee  au  cours  des  negociations  de  1902  par  les  Pays- 
Bas.  Cette  ligne  A C a ete  consacree  par  le  traite  de  1904  (voir 
Cartes  annexes  I et  II). 

4.  Le  point  C de  cette  ligne  n’est  pas  conteste;  il  est  situe  sur  la 
cote  nord  de  Tile  de  Timor,  a I’embouchure  dans  la  mer  de  la  Noel 
Meto,  dont  le  cours  a ete  substitue  en  1902-1904  au  cours  de  la  riviere 
Noel  Boll  Bass,  situee  plus  a Test  et  qu’avait  reclame  le  Portugal. 

Le  cours  de  la  Nod  Meto,  dont  le  thalweg  doit  servir  de  frontiere 
jusqu’a  sa  source,  a de  reconnu,  n’est  pas  conteste,  et  une  borne  a ete 
plantee  contradictoirement  a sa  source. 

5.  Le  point  A,  a I’extremite  meridionale  de  la  ligne  convenue  en 
1904,  est  le  point  auquel  les  travaux  de  delimitation  ont  ete  interrom- 
pus  en  1899.  Cela  n’est  pas  serieusement  conteste  par  le  Portugal,  qui, 
a deux  reprises  dans  son  premier  Memoire,  se  sert  des  mots : “On  ne 
peut  pas  nier  que  la  ligne  part  de  point  A,  auquel  se  rapportent  les 
proces-verbaux  des  negociations  (p.  10)  . . . On  ne  conteste  pas  que 
la  frontiere  dont  il  s’agit  ne  parte  du  point  ou  les  arpenteurs  de  1899 
ont  ete  empeches  d’aller  plus  loin”  (p.  15).  Contester  I’emplacement 
du  point  A serait  remettre  en  question  la  ddimitation  du  cours  in- 
ferieur  de  la  Nod  Bilomi  en  aval  de  ce  point;  or  cette  partie  de  la 
frontiere  a ete  reglee  definitivement  par  le  chiffre  9 de  I’article  3 du 
traite  de  1904 ; le  point  A a de  d’ailleurs  repde  contradictoirement  sur 
les  cartes  officielles  de  1899  et  de  1904  (voir  annexes  III  et  IV). 


THE  ISLAND  OF  TIMOR  CASE 


593 


6.  Les  negociateurs  de  1902-1904  se  sont  trouves  a partir  de  ce 
point  A en  presence  de  deux  propositions.  L’une,  la  proposition  por- 
tugaise,  consistait  a faire  remonter  a la  frontiere  la  riviere  Noel  Bilomi 
dans  la  direction  de  Test  jusqu’a  Nunkalai,  puis  a diriger  la  frontiere 
vers  le  nord,  par  Humusu,  afin  d’atteindre  la  source  de  la  riviere  la 
Noel  Boll  Bass  se  jetant  dans  la  mer  a I’orient  de  la  Noel  Meto  (ligne 
B D).  L’autre,  la  proposition  neerlandaise,  dite  ligne  A C,  consistait 
a se  diriger  vers  le  nord  des  le  point  A jusqu’aux  sources  de  la  Noel 
Meto.  Les  negociateurs  ont  nettement,  categoriquement,  repudie  le 
premier  trace  portugais  pour  accepter  la  seconde  ligne  A C reclamee 
par  les  Pays-Bas;  ils  ont,  sur  la  carte  annexee  au  traite  de  1904, 
attribue  aux  Pays-Bas  les  deux  rives  de  la  Noel  Meto  en  amont  du 
point  A,  auquel  les  delimitateurs  avaient  arrete  leurs  travaux  en  1899 
(voir  les  cartes  III  et  IV). 

7.  La  description  dans  le  traite  de  1904,  article  3,  chiffre  10,  de  cette 
ligne  A C,  la  carte  contradictoirement  dessinee  en  1899  et  sur  laquelle 
les  negociateurs  de  1902  ont  delibere,  comme  enfin  la  carte  officielle- 
ment  annexee  au  traite  de  1904,  mentionnent  au  point  A,  comme 
devant  former  limite  dans  la  direction  du  nord,  un  affluent  auquel 
toutes  les  Parties  ont  donne  de  1899  a 1909  le  nom  d’Oe  Sunan.  Les 
Parties  sont  aujourd’hui  d’accord  que  cet  affluent  porte  en  realite  le 
nom  de  Kabun  ou  de  Leos.  Une  autre  riviere,  decouverte  posterieure- 
ment  a environ  six  kilometres  plus  a Test,  porte,  d’apres  les  Portugais, 
le  nom  d’Oe  Sunan  et  prend  sa  source  au  nord  du  Kinapua,  montagne 
situee  tres  pres  de  la  rive  nord  de  la  Bilomi.  L’existence  de  cette 
riviere  Oe  Sunan  est  contestee  par  les  Pays-Bas  dans  leur  second 
Memoire  a la  suite  de  deux  reconnaissances  recentes ; ce  pretendu  Oe 
Sunan  s’appellerait  en  realite  Poeamesse  ou  Noel  Polan. 

II  est,  dans  la  pensee  de  I’arbitre,  impossible  que  cette  autre  riviere 
Oe  Sunan,  si  elle  existe,  ait  ete  celle  que  les  negociateurs  de  1899  et  de 
1902-1904  avaient  en  vue,  car 

o)  Elle  n’est  pas  un  affluent  de  la  Noel  Bilomi ; 

h)  La  frontiere  proposee  a cette  epoque  par  le  Portugal  et  ecartee 
d’un  commun  accord  en  1902-1904  devait,  en  partant  du  point  A et  en 
se  dirigeant  vers  Vest,  j>asser  par  Nunkalai  puis  par  Kinapua ; or  Nun- 
kalai est  situe  plusieurs  kilometres  a Vouest  du  mont  Kinapua  et  a 
Vouest  de  la  source  de  cette  nouvelle  riviere  denommee  Oe  Sunan  par 
les  Portugais; 

c)  Les  deux  rives  de  la  Noel  Bilomi  en  amont  et  a Test  du  point  A 
ayant  ete  attribuees  aux  Pays-Bas  en  1904,  I’affluent  devant  servir  de 
frontiere  dans  la  direction  du  nord  ne  peut  etre  recherche  en  amont 
et  a Test  du  point  A. 

Les  principes  generaux  sur  I’interpretation  des  Conventions  exigent 
qu’on  tienne  compte  “de  la  reelle  et  commune  intention  des  Parties 
sans  s’arreter  aux  expressions  ou  denominations  inexactes  dont  elles 
ont  pu  se  servir  par  erreur.”  Les  Parties  ont,  il  est  vrai,  commis  une 
erreur  en  donnant  le  nom  d’Oe  Sunan  a I’affluent  venant  du  nord  au 
point  A,  mais  c’est  cet  affluent  seul  (denomme  alors  par  erreur  Oe 
Sunan)  qui  etait  necessairement,  dans  la  pensee  concordante  des  Par- 


594 


ORIGINAL  TEXTS 


ties,  le  p>oint  auquel  la  frontiere  devait  quitter  la  NoH  Bilomi  pour  se 
diriger  vers  le  nord, — et  non  une  autre  riviere  a laquelle  les  Portugais 
donnent  ce  nom  d’Oe  Sunan  et  qui  serait  situee  six  kilometres  plus  a 
Test.  En  d’autres  termes,  c’est  bien  le  thalweg  de  la  riviere  aujourd’hui 
denomme  Kabun  ou  Leos  qui  doit  servir  de  frontiere  a partir  du 
point  A dans  la  direction  du  nord. 

8.  A f>artir  de  la  source  de  cette  riviere  Kabun  ou  Leos  (denommee 
a tort  Oe  Sunan  de  1899  a 1909)  au  sud,  la  frontiere  doit,  a teneur  de 
I’article  3,  chiffre  10,  du  traite  de  1904,  “traverser  autant  que  possible 
Nipani  et  Kelali  (Keli)”  pour  gagner  la  source  de  la  Noel  Meto,  au 
nord. 

La  delimitation  proposee  par  le  Portugal  contoumerait  entierement 
la  region  designee  sur  la  carte  officielle  de  1904  sous  le  nom  de 
Nipani  et  situee,  d’apres  cette  carte,  pres  de  la  source  du  Kabun  ou 
Leos ; la  frontiere  s’eloignerait  de  Nipani  de  plusieurs  kilometres  dans 
la  direction  de  Test.  Meme  si,  comme  le  fait  une  carte  portugaise  qui 
n’a  pas  de  caractere  contradictoirement  reconnu,  on  donnait  le  nom 
de  Nipani  a une  region  situee  beaucoup  plus  au  nord,  a I’orient  des 
sources  de  la  Noel  Meto,  la  frontiere  reclamee  par  le  Portugal  ne 
traverserait  pas  davantage  Nipani,  mais  le  contoumerait  par  le  nord. 

Le  traite  de  1904  prescrit  de  traverser  “autant  que  possible”  le 
Nipani.  Le  trace  suggere  par  le  Pays-Bas  longe  la  partie  occidentale 
du  Nipani  et  s’en  trouve  plus  pres  que  le  trace  propose  par  le  Portugal. 

9.  Le  Portugfal  objecte  que  la  ligne  directe  nord-sud  entre  les  sources 
de  la  riviere  Kabun  et  de  la  riviere  Noel  Meto  morcellerait  le  territoire 
des  Ambenos  en  Tattrihuant  partie  aux  Pays-Bas  et  partie  au  Portu- 
gal ; ce  mqrcellement  serait  contraire  au  traite  de  1859. 

Dans  la  pensee  de  I’arbitre,  cette  objection  n’cst  pas  fondee  en  ce 
sens  que,  deja  en  1859,  une  “partie”  de  I’Ambeno  etait  incontestable- 
ment  placee  sous  la  souverainete  des  Pays-Bas.  En  outre,  au  cours  des 
negociations  de  1899  a 1904,  il  a ete  produit  des  declarations  con- 
tradictoires  des  indigenes,  les  Amakonos  et  les  Tumbabas  n^rlandais 
revendiquant  le  territoire  conteste  et  les  Ambenos  portugfais  le  revendi- 
quant  de  leur  cote.  Ce  pretendu  morcellement  n’est  done  pas  demontre. 
De  plus,  il  a ete  entendu  aux  Conferences  de  1902,  sur  les  observations 
du  premier  delegue  portugais  lui-meme,  qu’il  n’y  avait  pas  lieu  de 
se  prTOCcuper  outre  mesure  des  pretentions  de  tribus  qui  se  deplacent 
frequemment  et  passent  successivement  du  territoire  de  Tun  des  fitats 
dans  celui  de  I’autre.  L'objection  que  les  territoires  d’une  meme  tribu 
ne  doivent  pas  etre  morceles,  ne  saurait  ainsi  etre  retenue  par  I’arbitre, 
car  elle  aurait  du  etre  present^  au  cours  des  negociations  de  1902- 
1904;  actuellement,  elle  est  tardive,  parce  que  le  traite  de  1904,  le  seul 
dont  Tarbitre  ait  a interpreter  Tarticle  3,  chiffre  10,  ne  fait  aucune 
mention  d’une  volonte  des  Parties  de  ne  jamais  separer  des  popula- 
tions indigenes ; ce  traite  a au  contraire  trace  la  ligne  de  demarcation 
a la  suite  de  Conferences  au  cours  desquelles  il  a ete  entendu  que  les 
considerations  de  ce  genre  ne  doivent  pas  etre  preponderantes. 

10.  La  lingne  de  faite  proposee  par  le  Gouvemement  neerlandais 
entre  la  source  de  la  riviere  Kabun  (Leos),  au  sud,  et  la  source 


THE  ISLAND  OF  TIMOR  CASE 


595 


de  la  Noel  Meto,  au  nord,  est  suffisamment  naturelle  pour  pouvoir 
etre  tracee  sur  le  terrain  sans  grandes  difficultes  pratiques.  Elle  offre 
I’avantage  que  les  cours  d’eau  descendent  uni  forme  de  cette  ligne  de 
faite  vers  des  territoires  tous  places  sous  la  souverainete  neerlandaise. 
Le  trace  suggere  par  le  Gouvernement  portugais  attribuerait  au  con- 
traire  a des  souverainetes  differentes  la  partie  superieure  et  la  partie 
inferieure  de  ces  divers  cours  d’eau. 

11.  D’une  fagon  generale,  la  demande  du  Portugal  reproduit,  en 
fait,  completement,  pour  tout  le  territoire  entre  la  Noel  Bilomi  au 
sud  et  le  source  de  la  Noel  Meto  au  nord,  la  ligne  que  cet  Ltat  revendi- 
quait  en  1902  et  qu’il  a abandonnee  tant  a la  fin  de  la  Conference  de 
1902  que  par  le  traite  de  1904.  Si  la  demande  portugaise  actuelle 
etait  fondee,  on  ne  s’expliquerait  pas  pourquoi  les  Pays-Bas  ont  fait, 
en  1902,  du  rejet  de  cette  demande  portugaise  une  condition  sine  qua 
non.  Les  Conventions  entre  Btats,  comme  celles  entre  particuliers, 
doivent  etre  interpretees  “plutot  dans  le  sens  avec  lequel  elles  peuvent 
avoir  quelque  efifet  que  dans  le  sens  avec  lequel  elles  n’en  pourraient 
produire  aucun.”  La  menace  neerlandaise  de  rompre  les  negociations 
en  1902  n’aurait  pas  de  sens  si  I’intention  avait  ete  alors  d’attribuer 
au  Portugal  precisement  le  territoire  reclame  par  les  Pays-Bas  comme 
une  condition  de  I’accord. 

12.  Enfin,  si  Ton  se  place  au  point  de  vue  de  I’equite,  qu’il  importe 
de  ne  pas  perdre  devue  dans  les  relations  internationales,  la  ligne  de 
faite  suggeree  par  les  Pays-Bas  n’est  pas  contraire  a I’equite,  en  ce 
sens  que  le  Portugal  recevra  plus  de  territoires  qu’il  n’en  devait  esperer 
selon  la  ligne  theorique  A C,  a laquelle  il  a consenti  en  1904,  avant 
qu’on  put  aller  reconnaitre  le  terrain.  La  ligne  A C est  toute  entiere 
tracee  a I’interieur  du  territoire  qui  reviendra  au  Portugal;  la  Repu- 
blique  portugaise  sera  de  la  sorte  mieux  partagee,  en  fait,  qu’elle  ne 
pouvait  s’y  attendre  (voir  carte  annexee  VII).  Si,  au  contraire,  le 
trace  oriental  suggere  par  le  Gouvernement  portugais  etait  adopte,  les 
Pays-Bas  pourraient  avec  raison  pretendre  qu’on  les  prive  de  presque 
tout  le  territoire  qui  leur  avait  ete  attribue  theoriquement  en  1904  en 
contre-partie  de  I’abandon  de  I’enclave  de  Maukatar  au  centre  de 
I’ile  de  Timor  et  en  contre-partie  de  I’abandon  des  revendications 
neerlandaises  sur  I’ensemble  de  l’“enclave”  d’Ambeno. 

En  consequence, 

L'arbitre 

vu  les  deux  traites  signes  a Lisbonne  les  20  avril  1859  et  10  juin 
1893  et  le  traite  signe  a La  Haye  le  1®''  octobre  1904  entre  les  Pays- 
Bas  et  le  Portugal  pour  la  ddimitation  de  leurs  possessions  respectives 
dans  rile  de  Timor ; 

vu  le  compromis  d’arbitrage  signe  a La  Haye  le  3 avril  1913,  et 
notamment  I’article  2 ainsi  congu : “L’arbitre,  statuant  sur  les  donnees 
fournies  par  les  Parties,  d^cidera  en  se  basant  sur  les  traites  et  les 
principes  generaux  du  droit  international,  comment  doit  etre  fixee 
conformement  a I’article  3,  10°  de  la  Convention  conclue  a La  Haye 
1®''  octobre  1904,  concemant  la  delimitation  des  possessions  neerlan- 


596 


ORIGINAL  TEXTS 


daises  et  portugaises  dans  Tile  de  Timor,  la  limite  a partir  de  la  Noel 
Bilomi  jusqu’a  la  source  de  la  Noel  Meto”; 

vu  les  Notes  diplomatiques  faisant  part  au  soussigne  de  sa  desi- 
gnation comme  arbitre  par  application  de  I’article  1®’’  du  compromis ; 

vu  les  premiers  et  seconds  Memoires  remis  en  temps  utile  par 
chacime  des  hautes  Parties  contestantes,  ainsi  que  les  cartes  et  docu- 
ments annexes  aux  dits  memoires ; 

vu  les  considerations  de  fait  et  de  droit  formulees  ci-dessus  sous 
chiffres  I a VII; 

vu  la  Convention  sign^  a La  Haye  le  18  octobre  1907  pour  le 
r^lement  pacifique  des  conflits  intemationaux ; 

Arrete 

L’article  3,  chiffre  10,  de  la  Convention  conclue  a La  Haye  le  I®*' 
octobre  1904  concemant  la  delimitation  des  possessions  neerlandaises 
et  portugaises  dans  Tile  de  Timor  doit  etre  interprete  conformement 
aux  conclusions  du  Gouvemement  royal  des  Pays-Bas,  pour  la  limite 
a partir  de  la  Noel  Bilomi  jusqu’a  la  source  de  la  Noel  Meto;  en  con- 
sequence, il  sera  precede  a I’arpentage  de  cette  partie  de  la  frontiere 
sur  la  base  de  la  carte  au  1/50,000  annexee  sous  N°.  IV  au  premier 
Memoire  remis  a I’arbitre  par  le  Gouvemement  neerlandais.  Une 
reproduction  de  cette  carte  signee  par  I’arbitre  est  jointe  comme  annexe 
VII  a la  presente  sentence  dont  elle  fera  partie  int^rante. 

Les  frais,  fixes  a fr.  2,000,  ont  ete  preleves  sur  la  somme  de  4,000  fr. 
consignee  entre  les  mains  de  I’arbitre  en  execution  de  I’art.  8 du  com- 
promis du  3 avril  1913;  la  difference,  soit  fr.  2,000,  sera  restituee  aux 
deux  parties  par  egales  portions  et  contre  quittance,  au  moment  de  la 
notification  de  la  sentence. 

Fait  en  trois  exemplaires  dont  I’un  sera  remis  contre  recepisse  par 
M.  le  secretaire  general  du  Bureau  international  de  la  Cour  perma- 
nente  d’arbitrage  a La  Haye,  a Son  Excellence  le  Ministre  des  Affaires 
fitrangeres  des  Pays-Bas  pour  valoir  notification  au  Gouvemement 
royal  neerlandais,  et  dont  le  second  sera  remis  le  meme  jour  et  dans  les 
memes  formes  a Son  Excellence  I’Envoye  extraordinaire  et  Ministre 
Plenipotentiaire  de  la  Republique  portugaise  pres  S.  M.  la  Reine  des 
Pays-Bas  pour  valoir  notification  au  Gouvemement  de  la  Republique 
portugaise.  Le  troisieme  exemplaire  sera  depose  aux  archives  du 
Bureau  international  de  la  Cour  permanente  d’arbitrage. 

Paris,  le  25  juin  1914. 

Lardy 


Agreement  for  Arbitration,  April  j, 

Sa  Majeste  la  Reine  des  Pays-Bas  et  le  President  de  la  Republique 
Portugaise  considerant  que  I’execution  de  la  Convention  conclue  entre 
les  Pays-Bas  et  le  Portugal  a La  Haye  le  I*’’  octobre  1904,  concemant 


^Official  report,  p.  41,  annex  D. 


THE  ISLAND  OF  TIMOR  CASE 


597 


la  delimitation  des  possessions  neerlandaises  et  portugaises  dans  I’ile 
de  Timor,  a fait  naitre  un  differend  au  sujet  de  I’arpentage  de  la  partie 
de  la  limite  visee  a Tarticle  3,  10°.  de  cette  Convention ; 
desirant  mettre  fin  a I’amiable  a ce  dififerend; 
vus  I’article  14  de  la  dite  Convention  et  I’article  38  de  la  Conven- 
tion pour  le  reglement  pacifique  des  conflits  intemationaux  conclue  a 
La  Haye  le  18  octobre  1907 ; 
ont  nomme  pour  Leurs  plenipotentiaires,  savoir: 


lesquels,  dument  autorises  a cet  effet,  sont  convenus  des  articles 
suivants : 


Article  1" 


Le  Gouvemement  de  Sa  Majeste  la  Reine  des  Pays-Bas  et  le 
Gouvernement  de  la  Republique  Portugaise  conviennent  de  soumettre 
le  dififerend  susmentionne  a un  arbitre  unique  a choisir  parmi  les  mem- 
bres  de  la  Cour  permanente  d’Arbitrage. 

Si  les  deux  (^uvernements  ne  pouvaient  tomber  d’accord  sur  le 
choix  de  tel  arbitre,  ils  adresseront  au  President  de  la  Confederation 
Suisse  la  requete  de  la  designer. 


Art.  2 

L’arbitre  statuant  sur  les  donnees  fournies  par  les  Parties,  decidera 
en  se  basant  sur  les  traites  et  les  principes  generaux  du  droit  interna- 
tional, comment  doit  etre  fixee  conformement  a I’article  3,  10°.  de  la 
Convention  conclue  a La  Haye  le  1®’’  octobre  1904,  concernant  la 
delimitation  des  possessions  neerlandaises  et  portugaises  dans  Tile  de 
Timor,  la  limite  a partir  de  la  Noel  Bilomi  jusqu’a  la  source  de  la 
Noel  Meto. 

Art.  3 

Chacune  des  Parties  remettra  par  I’intermediaire  du  Bureau  Inter- 
national de  la  Cour  permanente  d’Arbitrage  a I’arbitre  dans  un  delai 
de  3 mois  apres  I’cchange  des  ratifications  de  la  presente  Convention 
un  memoire  contenant  I’expose  de  ses  droits  et  les  documents  a I’appui 
et  en  fera  parvenir  immediatement  une  copie  certifiee  conforme  a 
I’autre  Partie. 

A I’expiration  du  delai  susnomme  chacune  des  Parties  aura  un 
nouveau  delai  de  3 mois  pour  remettre  par  I’intermediaire  susindique  a 
I’arbitre,  si  elle  le  juge  utile,  un  second  memoire  dont  elle  fera  parvenir 
une  copie  certifiee  conforme  a I’autre  Partie. 

L’arbitre  est  autorise  a accorder  a chacune  des  Parties  qui  le  de- 
manderait  une  prorogation  de  2 mois  par  rapport  aux  delais  mentionnes 
dans  cet  article.  II  donnera  connaissance  de  chaque  prorogation  a la 
Partie  adverse.^ 


^Une  prorogation  de  deux  mois  a ete  accordee  aux  Parties  par  I’arbitre  pour 
la  remise  de  leurs  seconds  memoires. 


598 


ORIGINAL  TEXTS 


Art.  4 

Apres  I’echange  de  ces  memoires  aucune  communication  ecrite  ou 
verbale  ne  sera  faite  a Tarbitre,  a moins  que  celui-ci  ne  s’adresse  aux 
Parties  pour  obtenir  d’elles  ou  de  Tune  d’elles  des  renseignements 
ulterieurs  par  ecrit. 

La  Partie  qui  donnera  ces  renseignements  en  fera  parvenir  imme- 
diatement  une  copie  certifiee  conforme  a I’autre  Partie  et  celle-ci 
pourra,  si  bon  lui  semble,  dans  un  delai  de  2 mois  apres  la  reception  de 
cette  copie,  communiquer  par  ecrit  a I’arbitre  les  observations  aux- 
quelles  ils  lui  donneront  lieu.  Ces  observations  seront  egalement  com- 
muniquees  immediatement  en  copie  certifiee  conforme  a la  Partie 
adverse. 

Art.  5 

L’arbitre  siegera  a un  endroit  a designer  par  lui. 

Art.  6 

L’arbitre  fera  usage  de  la  langue  franqaise  tante  dans  la  sentence 
que  dans  les  communications  qu’il  aura  a adresser  aux  Parties  dans 
le  cours  de  la  procedure.  Les  memoires  et  autres  communications 
emanant  des  Parties  seront  dresses  dans  cette  langue. 

Art.  7 

L’arbitre  decidera  de  toutes  les  questions  qui  pourraient  surgir 
relativement  a la  procedure  dans  le  cours  du  litige. 

Art.  8 

Aussitot  apres  la  ratification  de  la  presente  Convention  chacune  des 
Parties  deposera  entre  les  mains  de  I’arbitre  une  somme  de  deux  mille 
francs  a titre  d’avance  pour  les  frais  de  la  procedure. 

Art.  9 

La  sentence  sera  communiquee  par  ecrit  par  I’arbitre  aux  Parties. 

Elle  sera  motivee. 

L’arbitre  fixera  dans  sa  sentence  le  montant  des  frais  de  la  pro- 
cedure. Chaque  Partie  supportera  ses  propres  frais  et  une  part  egale 
des  dits  frais  de  procedure. 

Art.  10 

Les  Parties  s’engagent  a accepter  comme  jugement  en  dernier  ressort 
la  decision  prononcee  par  I’arbitre  dans  les  limites  de  la  presente  Con- 
vention et  a I’executer  sans  aucune  reserve. 

Tous  differends  concernant  I’execution  seront  soumis  a I’arbitre. 


THE  ISLAND  OF  TIMOR  CASE 


599 


Art.  11 

La  Presente  Convention  sera  ratifiee  et  entrera  en  vigueur  imme- 
diatement  apres  Techange  des  ratifications  qui  aura  lieu  a La  Haye 
aussitot  que  possible. 

En  foi  de  quoi,  les  plenipotentiaires  respectifs  ont  signe  la  presente 
Convention  qu’ils  ont  revetue  de  leurs  cachets. 

Fait  en  double  a La  Haye,  le  3 avril  1913. 

(L.-S.)  (Signe)  R.  de  Marees  van  Swinderen 

(L.-S.)  “ Antonio  Maria  Bartholomeu  Ferreira 


Agreement  of  April  20,  18 between  the  Netherlands  and  Portugal 
relative  to  Boundary  Possessions^ 

Sa  Majeste  le  Roi  des  Pays-Bas  et  Sa  Majeste  le  Roi  de  Portugal 
et  des  Algarves,  ayant  juge  utile  de  mettre  fin  aux  incertitudes  exis- 
tantes  relativement  aux  limites  des  possessions  Neerlandaises  et  Portu- 
gaises  dans  I’Archipel  de  Timor  et  Solor,  et  voulant  prevenir  a jamais 
tout  malentendu  que  pourraient  provoquer  des  limites  mal  definies  et 
des  enclaves  trop  multipliees,  ont  muni,  afin  de  s’entendre  a cet  egard, 
de  leurs  pleins-pouvoirs,  savoir: 


Lesquels,  apres  s’etre  communiques  les  dits  pleins-pouvoirs,  trouves 
en  bonne  et  due  forme,  sont  convenus  de  conclure  un  traite  de  demarca- 
tion et  d’echange,  contenant  les  articles  suivants : 

Article  I" 

Les  limites  entre  les  possessions  Neerlandaises  et  Portugaises  sur 
rile  de  Timor  seront  au  nord,  les  frontieres  qui  separent  Cova  de 
Juanilo ; et  au  sud,  celles  qui  separent  Sua  de  Lakecune. 

Entre  ces  deux  points,  les  limites  des  deux  possessions  sont  les 
memes  que  celles  des  Etats  limitrophes  Neerlandais  et  Portugais. 

Ces  Etats  sont  les  suivants ; 


Etats  limitrophes  sous  la  domina- 
tion de  la  Neerlcmde: 

Juanilo, 

Silawang, 

Fialarang  (Fialara), 
Lamaksanulu, 

Lamakanee, 

Naitimu  (Nartimu), 
Manden, 

Dirma, 

Lakecune. 


Etats  limitrophes  sous  la  domina- 
tion du  Portugal: 

Cova, 

Balibo, 

Lamakitu, 

Tafakaij  ou  Takaij 
Tatumea, 

Lanken, 

Dacolo, 

Tamiru  Eulalang  (Eula- 
leng),  Suai. 


^Official  report,  p.  31. 


600 


ORIGINAL  TEXTS 


Art.  2 

Le  Neerlande  reconnait  la  souverainete  du  Portugal  sur  tous  les 
Etats  qui  se  trouvent  a Test  des  limites  ainsi  circonscrites,  a I’exception 
d TEtat  Neerlandais  de  Maucatar  ou  Caluninene  (Colunin^e),  qui 
se  trouve  enclave  dans  les  Etats  Portugais  de  Lamalntu,  de  Tanterine, 
de  Follafaix  (Follefait)  et  du  Suai. 

Le  Portugal  reconnait  la  souverainete  de  la  Neerlande  sur  tous  les 
Etats  qui  se  trouvent  a I’ouest  de  ces  limites,  a I’exception  de  I’enclave 
d’Oikoussi,  qui  demeure  Portugaise. 

Art.  3 

L’enclave  d’Oikoussi  comprend  I’Etat  d’Ambenu  partout  ou  y est 
arbore  le  pavilion  Portugais,  I’Etat  d’Oikoussi  proprement  dit,  et 
celui  de  Noimuti. 

Les  limites  de  cette  enclave  sont  les  frontieres  entre  Ambenu  et 
Amfoang  a I’ouest,  d’Insana  et  Reboki  (Beboki),  y compris  Cicale  a 
Test,  et  Sonnebait,  y compris  Amakono  et  Tunebaba  (Timebaba)  au 
sud. 

Art.  4 

Sur  nie  de  Timor,  le  Portugal  reconnait  done  la  souverainete  de 
la  Neerlande  sur  les  Etats  d’Amarassi,  de  Bibico  (Traijnico,  Waij- 
niko),  de  Buboque  (Reboki),  de  Derima  (Dirma),  de  Fialara 
(Fialarang),  de  Lamakanee,  de  Nira  (Lidak),  de  Juanilo,  de  Mena  et 
de  Fulgurite  ou  Folgarita  (dependances  de  I’Etat  de  Hamenno). 

Art.  5 

La  Neerlande  cede  au  Portugal  le  royaume  de  Moubara  (Maubara) 
ct  cette  partie  d’Ambenu  ou  d’Ambeno  (Sutrana)  qui,  depuis  plusieurs 
annees,  a arbore  le  pavilion  Portugais. 

Immediatement  apres  que  I’echange  des  ratifications  de  ce  traite  par 
Leurs  Majestes  le  Roi  des  Pays-Bas  et  le  Roi  de  Portugal  aura  eu 
lieu,  le  Gouvemement  des  Pays-Bas  donnera  I’ordre  a I’autorite  su- 
perieure  des  Indes  Neerlandaises  de  remettre  le  royaume  de  Moubara 
(Maubara)  a I’autorite  superieure  Portugaise  de  Timor  Dilly. 

Art.  6 

La  Nwrlande  se  desiste  de  toute  pretention  sur  I’ile  de  Kambing 
(Pulo  Kambing),  au  nord  de  Dilly,  et  reconnait  la  souverainete  du 
Portugal  sur  cette  ile. 

Art.  7 

Le  Portugal  cede  a la  Neerlande  les  possessions  suivantes: 

sur  I’ile  de  Flores,  les  Etats  de  Larantuca,  Sicca  et  Paga,  avec  leurs 
dependances ; 

sur  I’ile  d’Adenara,  I’Etat  de  Woure ; 

sur  I’ile  de  Solor,  I’Etat  de  Pamangkaju. 

Le  Portugal  se  desiste  de  toutes  les  pretentions  que  peut-etre,  il 


THE  ISLAND  OF  TIMOR  CASE 


601 


aurait  pu  faire  valoir  sur  d'autres  Etats  ou  endroits  situes  sur  les  iles 
ci-dessus  nominees,  ou  sur  celles  de  Loinblen,  de  Pantar  et  d’Ombaij, 
que  ces  Etats  portent  le  pavilion  Neerlandais  ou  Portugais. 

Art.  8 

En  vertu  des  dispositions  de  I’article  precedent,  la  Neerlande  obtient 
la  possession  entiere  en  non-partagee  de  toutes  les  iles  situees  au  nord 
de  Timor,  savoir:  celles  de  Flores,  d’Adenara,  de  Solor,  de  Lomblen, 
de  Pantar  (Quantar)  et  d’Ombaij,  avec  les  petites  iles  environnantes 
appartenant  a I’Archipel  de  Solor. 

Art.  9 

En  compensation  de  ce  que  le  Portugal  pourrait  perdre  a I’echange 
des  possessions  respectives  ci-dessus  mentionnees,  le  Gouvernement 
des  Pays-Bas: 

1®.  donnera  au  Gouvernement  Portugais  quittance  complete  de  la 
somme  de  80,000  florins,  empruntee  en  1851  par  le  Gouvernement  des 
possessions  Portugaises  dans  I’Archipel  de  Timor  au  Gouvernement 
des  Indes  Neerlandaises; 

2°.  remettra  en  outre  au  Gouvernement  Portugais  une  somme  de 
120,000  florins  des  Pays-Bas. 

Cette  somme  sera  versee  un  mois  apres  I’echange  des  ratifications 
du  present  traite. 

Art.  10 

La  liberte  des  cultes  est  garantie  de  part  et  d’autre  aux  habitants 
des  territoires  echanges  par  le  present  traite. 

Art.  11 

Le  present  traite,  qui  sera  soumis  a la  sanction  des  pouvoirs  l^isla- 
tifs  en  conformite  des  regies  prescrites  par  les  lois  fondamentales  en 
vigueur  dans  les  Royaumes  des  Pays-Bas  et  du  Portugal,  sera  ratifie 
et  les  ratifications  seront  echangees  a Lisbonne,  dans  le  delai  de  huit 
mois,  a partir  de  sa  signature,  ou  plus  tot,  si  faire  se  peut. 

En  foi  de  quoi  les  plenipotentiaires  respectifs  ont  signe  le  present 
traite,  et  y ont  appose  le  sceau  de  leurs  armes. 

Fait  a Lisbonne,  le  vingt  Avril  mil  huit  cent  cinquante-neuf. 

(L.  S.)  (Signe)  M.  Heldewier 

(L.  S.)  (Signe)  A.  M.  de  Fontes  Pereira  de  Mello 


Convention  of  June  lo,  i8pj,  between  the  Netherlands  and  Portugal 
relative  to  Commerce,  Na/ingation,  Boundaries,  etc} 

Sa  Majeste  la  Reine  des  Pays-Bas  et  en  Son  Nom  Sa  Majeste  la 
Reine-Regente  du  Royaume. 


^Official  report,  p.  34. 


602 


ORIGINAL  TEXTS 


et  Sa  Majeste  le  Roi  de  Portugal  et  des  Algarves,  reconnaissant  la 
communaute  d’interets  qui  existe  entre  Leurs  possessions  dans  I’Archi- 
pel  de  Timor  et  Solor  et  voulant  r^ler  dans  un  esprit  de  bonne  entente 
mutuelle  les  conditions  les  plus  favorables  au  developpement  de  la 
civilisation  et  du  commerce  dans  Leurs  dites  p>ossessions,  ont  resolu 
de  conclure  une  convention  speciale  et  ont  nomme  a cet  effet  pour 
Leurs  plenipotentiaires,  savoir: 

lesquels,  apres  s’etre  communique  leurs  pleins  pouvoirs  respectifs, 
trouves  en  bonne  et  due  forme,  sont  convenus  des  articles  suivants : 

Article  1®'' 

Afin  de  faciliter  I’exercice  de  leurs  droits  de  Souverainete,  les  Hautes 
Parties  contractantes  estiment  qu’il  y a lieu  d’etablir  d’une  fagon  plus 
claire  et  plus  exacte  la  demarcation  de  leurs  possessions  a Tile  de 
Timor  et  de  faire  disparaitre  les  enclaves  actuellement  existantes. 

Art.  2 

Les  Hautes  Parties  contractantes  nommeront  a cet  effet  une  com- 
mission d’experts  qui  sera  chargee  de  formuler  une  proposition  pouvant 
servir  de  base  a la  conclusion  d’une  convention  ulterieure,  determinant 
la  nouvelle  ligne  de  demarcation  dans  la  dite  ile. 

Cette  convention  sera  soumise  a I’approbation  de  la  legislature  des 
deux  pays. 

Art.  3 

II  sera  accorde  a File  de  Timor  aux  bateaux  pecheurs  appartenant 
aux  sujets  de  chacune  des  Hautes  Parties  contractantes,  ainsi  qu’a 
leurs  equipages,  la  meme  protection  de  la  part  des  autorites  respectives, 
que  cedes  dont  jouiront  les  sujets  respectifs. 

Le  commerce,  I’industrie  et  la  navigation  des  deux  pays  y jouiront 
du  traitement  de  la  nation  etrangere  la  plus  favorisee,  sauf  le  traite- 
ment  special  accorde  respectivement  par  les  Hautes  Parties  contrac- 
tantes aux  Etats  indigenes. 

Art.  4 

Les  Hautes  Parties  contractantes  decident  que  l’imp>ortation  et 
I’exportation  de  toutes  armes  a feu  entieres  ou  en  pieces  detachees, 
de  leurs  cartouches,  des  capsules  ou  d’autres  munitions,  destinees  a 
les  approvisionner,  sont  interdites  dans  leurs  possessions  de  I’Archipel 
de  Timor  et  Solor. 

Independamment  des  mesures  prises  directement  par  les  Gouveme- 
ments  pour  I’armement  de  la  force  publique  et  I’organisation  de  leur 
defense,  des  exceptions  pourront  etre  admises  a titre  individuel  pour 
leurs  sujets  Europeens,  olfrant  une  garantie  sufhsante  que  I’arme  et 
les  munitions  qui  leur  seraient  delivrees,  ne  seront  pas  cedees  ou 
vendues  a des  tiers,  et  pour  des  voyageurs  etrangers,  munis  d’une 
declaration  de  leur  Gouvemement  constatant  que  I’arme  et  les  muni- 
tions sont  exclusivement  destinees  a leur  defense  personnelle. 


THE  ISLAND  OF  TIMOR  CASE 


603 


Art.  5 

Toutefois  les  autorites  superieures  de  la  partie  neerlandaise  et  de 
la  partie  portugaise  de  I’ile  de  Timor  seront  autorisees  a fixer  annuelle- 
ment,  d’un  commun  accord,  le  nombre  et  la  qualite  des  armes  a feu 
non  perfectionnees  et  la  quantite  de  munitions  qui  pourront  etre  in- 
troduites  dans  le  courant  de  la  meme  annee,  ainsi  que  les  conditions 
dans  lesquelles  cette  importation  pourra  etre  accordee. 

Cette  importation  cependant  ne  pourra  se  faire  que  par  I’interme- 
diaire  de  certaines  personnes  ou  agents  qui  resident  a Tile  meme  et 
qui  auront  obtenu  a cet  egard  un  autorisation  speciale  de  I’adminis- 
tration  superieure  respective. 

En  cas  d’abus  cette  autorisation  sera  immediatement  retiree  et  ne 
pourra  etre  renouvelee. 

Art.  6 

Le  Gouvemement  neerlandais,  voulant  donner  une  preuve  de  son 
desir  de  consolider  ses  rapports  de  bon  voisinage,  declare  renoncer  a 
I’indemnite  a laquelle  il  pretend  avoir  droit  du  chef  de  certains  traite- 
ments  que  des  pecheurs  Neerlando-Indiens  ont  subi  de  1889  a 1892 
de  la  part  des  autorites  du  Timor-portugais. 

Art.  7 

Dans  le  cas  ou  quelque  difficulte  surgirait  par  rapport  a leurs  rela- 
tions intercoloniales  dans  I’Archipel  de  Timor  et  Solor  ou  au  sujet  de 
I’interpretation  de  la  presente  convention,  les  Hautes  Parties  contrac- 
tantes  s’engagent  a se  soumettre  a la  decision  d’une  commission 
d’arbitres. 

Cette  commission  sera  composee  d’un  nombre  egal  d’arbitres  choisis 
par  les  Hautes  Parties  contractantes  et  d’un  arbitre  designe  par  ces 
arbitres. 

Art.  8 

La  presente  convention  sera  ratifiee  et  les  ratifications  en  seront 
echangees  a Lisbonne. 

En  foi  de  quoi,  les  plenipotentiaires  I’ont  signee  et  y ont  appose 
leurs  chachets. 

Fait  a Lisbonne,  en  double  expedition,  le  dix  juin  mil  huit  cent 
quatre-vingt-treize. 

(L.  S.)  (Signe)  Carel  van  Heeckeren 

“ “ Ernesto  Rodolpho  Hintze  Ribeiro 


Declaration  of  July  i,  i8pj,  regarding  Cession  of  Territory^ 

Les  soussignes  plenipotentiaires  des  Gouvernements  signataires  de 
la  convention  du  10  juin  1893  sont  convenus  de  la  declaration  suivante. 
Afin  d’assurer  le  resultat  de  leur  action  commune  qui  tend  surtout  a 


^Official  report,  p.  36. 


604 


ORIGINAL  TEXTS 


encourager  le  commerce  et  I’industrie  de  leurs  nationaux  par  des  garan- 
ties  de  securite  et  de  stabilite,  les  Hautes  Parties  contractantes  decla- 
rent  qu’elles  se  reconnaissent  reciproquement,  en  cas  de  cession  soit 
en  partie  soit  en  totalite  de  leurs  territoires  ou  de  leurs  droits  de 
souverainete  dans  I’Archipel  de  Timor  et  Solor,  le  droit  de  prefer- 
ence a des  conditions  similaires  ou  equivalentes  a celles  qui  auront  ete 
offertes.  Les  cas  de  desaccord  sur  ces  conditions  tombent  eg^lement 
sous  Tapplication  de  I’article  septieme  de  la  convention  precitee. 

La  presente  declaration  qui  sera  ratifiee  en  meme  temps  que  la 
convention  conclue  a Lisbonne  le  10  juin  1893,  sera  consideree  comme 
faisant  partie  integrante  de  cette  convention  et  aura  la  meme  force 
et  valeur. 

En  foi  de  quoi,  les  plenipotentiaires  respectifs  ont  signe  la  presente 
declaration  et  y ont  appose  leurs  cachets. 

Fait  a Lisbonne  en  double  expedition,  le  I"  juillet  1893. 

(L.  S.)  (Signe)  Carel  van  Heeckeren 

“ “ Ernesto  Rodolpho  Hintze  Ribeiro 


Convention  of  October  i,  1904,  settling  the  Boundary  of  the  Island  of 

Timor^ 

Sa  Majeste  la  Reine  des  Pays-Bas  et  Sa  Majeste  le  Roi  de  Portugal 
et  des  Algarves,  etc.,  etc. 

reconnaissant  la  communaute  d’interets  qui  existe  entre  Leurs  pos- 
sessions dans  I’Archipel  de  Timor  et  de  Solor,  et  desirant  arriver  a 
une  demarcation  claire  et  exacte  de  ces  possessions  dans  ITle  de  Timor, 
apres  avoir  pris  connaissance  du  resultat  des  travaux  de  la  Commis- 
sion mixte  pour  la  regularisation  des  frontieres  neerlandaises  et  portu- 
gaises  dans  I’lle  de  Timor,  instituee  par  les  Gouvemements  respectifs 
en  vertu  de  I’article  II  de  la  Convention  conclue  entre  les  Hautes 
Parties  a Lisbonne  le  10  juin  1893,  ont  resolu  de  conclure  une  Conven- 
tion a cet  effet  et  ont  nomme  pour  Leurs  plenipotentiaires. 

Lesquels  apres  s’etre  communique  leurs  pleins-pouvoirs,  trouves  en 
bonne  et  due  forme,  sont  convenus  de  ce  qui  suit : 

Article  1®’' 

Les  Pays-Bas  cedent  le  Maucatar  au  Portugal. 

Art.  2 

Le  Portugal  cede  aux  Pays-Bas  le  Noimuti,  le  Tahakay  et  le  Tamiru 
Ailala. 

Art.  3 

La  limite  entre  O’Kussi-Ambenu,  appartenant  au  Portugal,  et  les 
possessions  neerlandaises  dans  Tile  de  Timor  est  formee  par  une  ligne : 


^Official  report,  p.  37. 


THE  ISLAND  OF  TIMOR  CASE 


605 


1°.  partant  du  point  a I’embouchure  de  la  Noel  (riviere)  Besi  d’ou 
le  point  culminant  de  Pulu-(ile)  Batek  se  voit  sous  un  azimut  astrono- 
mique  de  trente  degres  quarante-sept  minutes  Nord-Ouest,  suivant  le 
thalweg  de  la  Noel  Besi,  celui  de  la  Noel  Niema  et  celui  de  la  Bidjael 
Sunan  jusqu’a  sa  source; 

2°.  montant  de  la  jusqu’au  sommet  Bidjael  Sunan,  et  descendant  par 
le  thalweg  de  la  Noel  Miu  Mavo  jusqu’au  point  situe  au  Sud-Ouest 
du  village  Oben ; 

3”.  de  la  passant  a I’ouest  de  ce  village  par  les  sommets  Banat  et 
Kita  jusqu’au  sommet  Nivo  Nun  Po;  de  la  suivant  le  thalweg  des 
rivieres  la  Nono  Boni  et  la  Noel  Pasab  jusqu’a  son  affluent  le  Nono 
Susu,  et  montant  le  Nono  Susu  jusqu’a  sa  source; 

4°.  passant  le  Klus  (Crus)  jusqu’au  point  ou  la  frontiere  entre  Abani 
et  Nai  Bobbo  croise  la  riviere  la  Fatu  Basin,  et  de  la  au  point  nomme 
Subina ; 

5®.  descendant  ensuite  par  le  thalweg  de  la  Fatu  Basin  jusqu’a  la 
Ke  An;  de  la  jusqu’au  Nai  Nad; 

6®,  passant  le  Nai  Nad  et  descendant  dans  la  Tut  Nonie,  par  le 
thalweg  de  la  Tut  Nonie  jusqu’a  la  Noel  Ekan ; 

7°.  suivant  le  thalweg  de  la  Noel  Ekan  jusqu’a  I’affluent  le  Sonau, 
par  le  thalweg  de  cet  affluent  jusqu’a  sa  source  et  de  la  a la  riviere 
Nivo  Nono; 

8®.  montant  par  le  thalweg  de  cette  riviere  jusqu’a  sa  source,  pour 
aboutir,  en  passant  le  point  nomme  Ohoe  Baki,  a la  source  de  la  Nono 
Balena ; 

9°.  suivant  le  thalweg  de  cette  riviere,  celui  de  la  Nono  Nise  et  celui 
de  la  Noel  Bilomi  jusqu’a  I’affluent  de  celle-ci  le  Oe  Sunan; 

10°.  a partir  de  ce  point  la  limite  suit  le  thalweg  de  I’Oe  Sunan, 
traverse  autant  que  possible  Nipani  et  Kelali  (Keli),  gagne  la  source 
de  la  Nod  Meto  et  suit  le  thalweg  de  cette  riviere  jusqu’a  son 
embouchure. 

Art.  4 

La  partie  de  la  limite  entre  O’Kussi  Ambenu  et  les  possessions 
neerlandaises,  visee  a I’article  3 10®.,  sera  arpentee  et  indiquee  sur  le 
terrain  dans  le  plus  court  delai  possible. 

L’arpentage  de  cette  partie  et  I’indication  sur  le  terrain  seront  cer- 
tifies par  un  procd-verbal  avec  une  carte  a dresser  en  deux  exem- 
plaires  qui  seront  soumis  a I’approbation  des  Hautes  Parties  con- 
tractantes ; apres  leur  approbation,  ces  documents  seront  signes  au 
nom  des  Gouvemements  respectifs. 

Ce  n’est  qu’aprd  la  signature  de  ces  documents  que  les  Hautes 
Parties  contractantes  acquereront  la  souverainete  des  regions  men- 
tionnees  aux  articles  1 et  2. 

Art.  5 

La  limite  entre  les  possessions  des  Pays-Bas  dans  la  partie  occiden- 
tal et  du  Portugal  dans  la  partie  orientale  de  I’ile  de  Timor  suivra  du 
Nord  au  Sud  une  ligne: 

1°.  partant  de  I’embouchure  de  la  Mota  Biku  (Silaba)  par  le  thalweg 


606 


ORIGINAL  TEXTS 


de  cette  riviere  jusqu’a  son  affluent  le  We  Bedain,  par  le  thalweg  du 
We  Bedain,  jusqu’a  la  Mota  Asudaat  (Assudat),  par  le  thalweg  de 
cette  riviere  jusqu’a  sa  source,  et  suivant  de  la  dans  la  direction  du 
Nord  au  Sud  les  coteaux  du  Kleek  Teruin  (Klin  Teruin)  et  du  Berenis 
(Birenis)  Kakotun; 

2°.  puis  jusqu’a  la  riviere  Muda  Sorun,  suivant  le  thalweg  de  cette 
riviere,  et  celui  de  la  Tuah  Naruk  jusqu’a  la  riviere  le  Telau  (Talau)  ; 

3®.  suivant  le  thalweg  de  la  Telau  jusqu’a  la  riviere  la  Malibaka, 
par  le  thalweg  de  cette  riviere,  celui  de  la  Mautilu,  et  celui  de  la 
Pepies  jusqu’a  la  montagne  Bulu  Hulu  (Bulu  Bulu) ; 

4®.  de  la  jusqu’au  Karawa  Kotun,  du  Karawa  Kotun  par  le  thalweg 
de  la  riviere  la  Marees  (Lolu)  jusqu’a  la  riviere  la  Tafara,  par  le 
thalweg  de  cette  riviere  jusqu’a  sa  source  appelee  la  Mota  Tiborok 
(Tibor),  et  montant  de  la  au  sommet  Dato  Miet  et  descendant  a la 
Mota  Alun ; 

5®.  par  le  thalweg  de  la  Mota  Alun,  celui  de  la  Mota  Sukaer 
(Sukar),  et  celui  de  la  Mota  Baukama,  jusqu’a  I’affluent  de  celle-ci, 
appele  Kalan-Fehan ; 

6®.  passant  les  montagnes  Tahi  Fehu,  Fatu  Suta,  Fatu  Rusa,  le  grand 
arbre  nomme  Halifea,  le  sommet  Uas  Lulik,  puis  traversant  la  riviere 
la  We  Merak  ou  elle  regoit  son  affluent  We  Nu,  puis  passant  la  grande 
pierre  nommee  Fatu  Rokon,  les  sommets  Fitun  Monu,  Debu  Kasa- 
bauk,  Ainin  Matan  et  Lak  Fuin; 

7®.  du  Lak  Fuin  jusqu’au  point  ou  la  Hali  Sobuk  se  jette  dans  la 
Mota  Haliboi  et  par  le  thalweg  de  cette  riviere  jusqu’a  sa  source ; 

8®.  de  cette  source  jusqu’a  celle  de  la  Mota  Bebulu,  par  le  thalweg 
de  cette  riviere  jusqu’a  la  We  Diek,  montant  aux  sommets  Ai  Kakar 
et  Takis,  descendant  dans  la  Mota  Masin  et  suivant  le  thalweg  de  la 
Mota  Masin  et  de  son  embouchure  nommee  Mota  Talas. 

Art.  6 

Sauf  les  dispositions  de  I’article  4,  les  limites  decrites  aux  articles 
3 et  5 sont  tracees  sur  les  cartes  annexees  a la  presente  Convention  et 
signees  par  les  plenipotentiaires  respectifs. 

Art.  7 

Les  territoires  respectivement  cedes  seront  evacuees  et  I’administra- 
tion  en  sera  remise  aux  autorites  competentes  dans  les  six  mois  apres 
I’approbation  du  proces-verbal  vise  a I’article  4. 

Art.  8 

Les  archives,  cartes  et  autres  documents  relatifs  aux  territoires 
cedes,  seront  remis  aux  nouvelles  autorites  en  meme  temps  que  les 
territoires  memes. 

Art.  9 

La  navigation  sur  les  rivieres  formant  limite  sera  lib  re  aux  sujets 
des  deux  Hautes  Parties  contractantes  a I’exception  du  transport 
d’armes  et  de  munitions. 


THE  ISLAND  OF  TIMOR  CASE 


607 


Art.  10 

Lors  de  la  remise  des  territoires  cedes,  des  homes  en  pierre  in- 
diquant I’annee  de  la  presente  convention,  d’une  forme  et  d’une  dimen- 
sion convenables  au  but  qu’elles  sont  destinees  a remplir,  seront 
plantees  avec  solennite  a un  endroit  convenable  de  la  cote  pres  de 
I’embouchure  des  rivieres  nommees  ci-apres.  Les  homes  neerlandaises 
seront  plantees  sur  les  rives  occidentales  de  la  Mota  Biku  et  de  la 
Mota  Masin  et  les  homes  portugaises  sur  les  rives  orientales  de  ces 
rivieres.  Les  quatre  homes  en  pierre  seront  fournies  par  le  Gouveme- 
ment  Neerlandais  aux  frais  des  deux  gouvernements  et  le  Gouveme- 
ment  Neerlandais  mettra  un  batiment  de  la  marine  royale  a la  dis- 
position des  autorites  respectives  pour  la  remise  solennelle  des  terri- 
toires cedes  et  la  plantation  des  homes. 

En  outre  la  frontiere,  ou  elle  n’est  pas  formee  par  des  limites  natu- 
relles,  sera  d’un  commun  accord  demarquee  sur  le  terrain  par  les 
autorites  locales. 

Art.  11 

Sauf  les  dispositions  de  I’article  4,  il  sera  dresse  proces-verbal  en 
langue  fran<;aise  constatant  la  cession  des  territoires  et  la  plantation 
des  homes. 

Les  proces-verbaux  seront  dresses  en  doubles  exemplaires  et  signes 
par  les  autorites  respectives  des  deux  pays. 

Art.  12 

La  liberte  des  cultes  est  garantie  de  part  et  d’autre  aux  habitants 
des  territoires  echanges  par  la  presente  Convention. 

Art.  13 

Les  Hautes  Parties  contractantes  se  reconnaissent  reciproquement, 
en  cas  de  cession  soit  en  partie  soit  en  totalite  de  leurs  territoires  ou 
de  leurs  droits  de  souverainete  dans  I’Archipel  de  Timor  et  Solor,  le 
droit  de  preference  a des  conditions  similaires  ou  equivalentes  a celles 
qui  auraient  ete  ofFertes. 

Art.  14 

Toutes  questions  ou  tous  differends  sur  I’interpretation  ou  I’execu- 
tion  de  la  presente  Convention,  s’ils  ne  peuvent  etre  regies  a I’amiable, 
seront  soumis  a la  Cour  Permanente  d’Arbitrage  conformement  aux 
dispositions  prevues  au  chapitre  II  de  la  Convention  intemationale 
du  29  juillet  1899  pour  la  solution  pacifique  des  conflits  interna- 
tionaux. 

Art.  15 

La  presente  Convention  sera  rati  fee  et  les  ratifications  en  seront 
echangees  aussitot  que  possible  apres  I’approbation  de  la  legislature 
des  deux  Pays. 


608 


ORIGINAL  TEXTS 


En  foi  de  quoi  les  plenipotentiaires  respectifs  ont  signe  la  presente 
Convention  et  y ont  appose  leurs  cachets. 

Fait,  en  double  expedition,  a La  Haye  le  I®""  Octobre  1904. 

(L.-S.)  (Signe)  Bn  Melvil  de  Lynden 
(L.-S.)  “ Idenburg 

(L.-S.)  “ Conde  de  Selir 


THE  NORTH  SEA  or  DOGGER  BANK  CASE 


Report  of  the  Commission  of  Inquiry,  February  26,  /po5^ 

1".  Les  Commissaires,  apres  tin  examen  minutieux  et  prolonge  de 
I’ensemble  des  faits  parvenus  a leur  connaissance  sur  I’incident  soumis 
a leur  enquete  par  la  Declaration  de  Saint-Petersbourg  du  12  (25) 
Novembre  1904,  ont  precede  dans  ce  Rapport  a un  expose  analytique 
de  ces  faits  suivant  leur  enchainement  rationnel. 

En  faisant  connaitre  les  appreciations  dominantes  de  la  Commission 
en  chaque  point  important  ou  decisif  de  cet  expose  sommaire,  ils  pen- 
sent  avoir  mis  suffisament  en  lumiere  les  causes  et  les  consequences 
de  I’incident  en  question  en  meme  temps  que  les  responsabilites  qui 
s’en  degagent. 

2.  La  seconde  escadre  Russe  de  la  flotte  du  Pacifique,  sous  le  com- 
mandement  en  chef  du  Vice-Amiral  Aide-de-camp  General  Rojdest- 
vensky,  mouillait  le  7 (20)  Octobre  1904,  aupres  du  Cap  Skagen  avec 
I’intention  de  faire  du  charbon  avant  de  continuer  sa  route  pour 
TExtreme-Orient. 

II  parait,  d’apres  les  depositions  acquises,  que,  des  le  depart  de 
I'escadre  de  la  rade  de  Reval,  I’Amiral  Rojdestvensky  avait  fait  pren- 
dre des  precautions  minutieuses  par  les  batiments  places  sous  ses  ordres 
afin  de  les  mettre  pleinement  en  etat  de  repousser  pendant  la  nuit  une 
attaque  de  torpilleurs,  soit  a mer,  soit  au  mouillage. 

Ces  precautions  semblaient  justifiees  par  les  nombreuses  informa- 
tions des  Agents  du  Gouvernement  Imp>erial  au  sujet  de  tentatives 
hostiles  a redouter,  et  qui,  selon  toutes  vraisemblances,  devaient  se 
produire  sous  la  forme  d’attaques  de  torpilleurs. 

En  outre,  pendant  son  sejour  a Skagen  I’Amiral  Rojdestvensky  avait 
ete  averti  de  la  presence  de  batiments  suspects  sur  la  cote  de  Norvege. 
II  avait  appris,  de  plus,  par  le  Commandant  du  transport  “Bakan,” 
arrivant  du  nord,  que  celui-ci  avait  apenju  la  nuit  precedente  quatre 
torpilleurs  portant  un  seul  feu  et  en  tete  de  mat. 

Ces  nouvelles  deciderent  I’Amiral  a avancer  son  depart  de  vingt- 
quatre  heures. 

3.  En  consequence,  chacun  des  six  echelons  distincts  de  I’escadre 
appareilla  separement  a son  tour  et  gagna  la  Mer  du  Nord,  inde- 
pendamment,  dans  I’ordre  indique  par  le  rapport  de  I’Amiral  Rojdest- 
vensky ; cet  officier  general  commandant  en  personne  le  dernier  echelon 
forme  par  les  quatre  nouveaux  cuirasses  “Prince  Souvoroff,”  “Em- 
pereur  Alexandre  HI,’’  “Borodino,”  “Orel,”  et  le  transport  “Anadyr.” 

Cet  echelon  quitta  Skagen  le  7 (20)  Octobre  a 10  heures  du  soir. 

La  vitesse  de  12  noeuds  fut  prescrite  aux  deux  premiers  echelons, 
formes  de  torpilleurs,  et  celle  de  10  noeuds  aux  echelons  suivants. 


^British  and  Foreign  State  Papers,  vol.  99,  p.  921. 


610 


ORIGINAL  TEXTS 


4.  Entre  1 heure  30  et  4 heures  15  de  rapres-midi  du  lendemain, 
8 (21)  Octobre,  tous  les  echelons  de  Tescadre  furent  croises  successive- 
ment  par  le  vapeur  Anglais,  “Zero,”  dont  le  Capitaine  examina  avec 
assez  d’attention  les  differentes  unites  pour  permettre  de  les  recon- 
naitre  d’apres  la  description  qu’il  en  fit. 

Les  resultats  de  ses  observations  sont  conformes  d’ailleurs  en 
general  aux  indications  du  rapport  de  I’Amiral  Rojdestvensky. 

5.  Le  dernier  navire  croise  par  le  “Zero”  etait  le  “Kamchatka,” 
d’apres  la  description  qu’il  en  donna. 

Ce  transport,  qui  formait  primitivement  groupe  avec  le  “Dmitri 
Donskoi”  et  1’  “Avrora,”  se  trouvait  done  alors  attarde  et  isole  a une 
dizaine  de  milles  environ  en  arriere  de  I’escadre;  il  avait  ete  oblige 
de  diminuer  de  vitesse  a la  suite  d’une  avarie  de  machine. 

Ce  retard  accidental  fut  peut-etre  la  cause  incidente  des  evenements 
qui  suivirent. 

6.  Vers  8 heures  du  soir,  en  eflfet,  ce  transport  rencontra  le  batiment 
Suedois  “Aldebaran”  et  d’autres  navires  inconnus,  qu’il  canonna  sans 
doute  par  suite  des  preoccupations  que  lui  causaient  dans  les  circon- 
stances  du  moment  son  isolement,  ses  avaries  de  machine  et  son  peu 
de  valeur  militaire. 

Quoiqu’il  en  soit,  le  Commandant  du  “Kamchatka”  transmit  a 8 
heures  45  a son  Commandant-en-chef  par  la  telegraphic  sans  fil,  au 
sujet  de  cette  rencontre,  I’information  qu’il  etait  “attaque  de  tous  cotes 
par  des  torpilleurs.” 

7.  Pour  se  rendre  compte  de  la  part  que  cette  nouvelle  put  prendre 
dans  les  determinations  ulterieures  de  I’Amiral  Rojdestvensky,  il  faut 
considerer  que  dans  ses  previsions  les  torpilleurs  assaillants,  dont  la 
presence  lui  etait  ainsi  signalee,  a tort  ou  a raison,  a une  cinquantaine 
de  milles  en  arriere  de  I’echelon  des  vaisseaux  qu’il  commandait, 
pouvaient  le  rejoindre  pour  I’attaquer  a son  tour  vers  1 heure  du 
matin. 

Cette  information  decida  I’Amiral  Rojdestvensky  a signaler  a ses 
batiments  vers  10  heures  du  soir  de  redoubler  de  vigilance  et  de  s’at- 
tendre  a une  attaque  de  torpilleurs. 

8.  A bord  du  “Souvoroff”  I’Amiral  avait  juge  indispensable  que  I’un 
des  deux  officiers  superieurs  de  son  etat-major  fut  de  quart  sur  la 
passerelle  de  commandement  pendant  la  nuit  afin  de  surveiller,  a sa 
place,  la  marche  de  I’escadre  et  de  le  prevenir  immediatement  s’il  se 
produisait  quelque  incident. 

A bord  de  tous  les  batiments,  d’ailleurs,  les  ordres  permanents  de 
I’Amiral  prescrivaient  que  I’Officier  chef  de  quart  etait  autorise  a 
ouvrir  le  feu  dans  le  cas  d’une  attaque  evidente  et  imminente  de 
torpilleurs. 

Si  I’attaque  venait  de  I’avant  il  devait  le  faire  de  sa  propre  initiative, 
et,  dans  le  cas  contraire,  beaucoup  moins  pressant,  il  devait  en  referer 
a son  Commandant. 

Au  sujet  de  ces  ordres  la  majorite  des  Commissaires  estime  qu’ils 
n’avaient  rien  d’excessif  en  temps  de  guerre,  et  particulierement  dans 
les  circonstances,  que  I’Amiral  Rojdestvensky  avait  tout  lieu  de  con- 


THE  NORTH  SEA  OR  DOGGER  BANK  CASE 


611 


siderer  comme  tres  alarmantes,  dans  Timpossibilite  ou  il  se  trouvait  de 
controler  I’exactitude  des  avertissements  qu’il  avait  regus  des  Agents  de 
son  Gouvernement. 

9.  Vers  1 heure  du  matin  le  9 (22)  Octobre,  1904,  la  nuit  etait  a 
demi  obscure,  un  peu  voilee  par  une  brume  legere  et  basse.  La  lune  ne 
se  montrait  que  par  intermittences  entre  les  nuages.  Le  vent  soufflait 
moderement  du  sud-est,  en  soulevant  une  longue  houle  qui  imprimait 
aux  vaisseaux  des  roulis  de  5 degres  de  chaque  bord. 

La  route  suivie  par  Tescadre  vers  le  sud-ouest  devait  conduire  les 
deux  derniers  echelons,  ainsi  que  la  suite  des  evenements  I’a  prouve, 
a passer  a proximite  du  lieu  de  peche  habituel  de  la  flottille  des 
chalutiers  de  Hull,  composee  d’une  trentaine  de  ces  petits  batiments  a 
vapeur  et  couvrant  une  etendue  de  quelques  milles. 

II  resulte  des  depositions  concordantes  des  temoins  Britanniques  que 
tous  ces  bateaux  portaient  leurs  feux  reglementaires  et  chalutaient  con- 
formement  a leurs  regies  usuelles,  sous  la  conduite  de  leur  maitre  de 
peche,  suivant  les  indications  de  fusees  conventionnelles. 

10.  D’apres  les  communications  regues  par  la  telegraphic  sans  fil, 
rien  d’anormal  n’avait  ete  signale  par  les  echelons  qui  precedaient  celui 
de  I’Amiral  Rojdestvensky  en  franchissant  ces  parages. 

On  a su  depuis,  notamment,  que  I’Amiral  Fdlkersam,  ayant  ete  con- 
duit a contoumer  la  flotille  dans  le  nord,  eclaira  de  tres  pres  avec  ses 
projecteurs  electriques  les  chalutiers  les  plus  voisins  et,  les  ayant 
reconnus  ainsi  pour  des  batiments  inoffensifs,  continua  tranquillement 
sa  route. 

11.  C’est  peu  de  temps  apres  qu’arrivait  a son  tour,  a proximite  du 
lieu  de  peche  des  chalutiers,  le  dernier  echelon  de  I’escadre  conduit  par 
le  “Souvoroff,”  battant  pavilion  de  I’Amiral  Rojdestvensky. 

La  route  de  cet  echelon  le  conduisait  a peu  pres  sur  le  gros  de 
la  flottille  des  chalutiers,  qu’il  allait  done  etre  oblige  de  contoumer, 
mais  dans  le  sud,  quand  I’attention  des  officiers  de  service  sur  les  pas- 
serelles  du  “Souvoroff”  fut  attiree  par  une  fusee  verte  qui  les  mit  en 
defiance. 

Cette  fusee,  lancee  par  le  maitre  depeche,  indiquait  en  realite,  suivant 
leurs  conventions,  que  les  chalutiers  devaient  draguer  le  cote  tribord 
au  vent. 

Presque  immediatement  apres  cette  premiere  alerte  ct  en  se  rap- 
portant  atix  depositions,  les  observateurs,  qui  des  passerelles  du  “Sou- 
voroff” fouillaient  I’horizon  avec  des  jumelles  de  nuit,  <lecouvrirent 
“sur  la  Crete  des  lames  dans  la  direction  du  bossoir  de  tribord  et  a une 
distance  approximative  de  18  a 20  encablures”  un  batiment  qui  leur 
parut  suspect  parce  qu’ils  ne  lui  voyaient  aucun  feu  et  que  ce  batiment 
leur  semblait  se  diriger  vers  eux  a contre-bord. 

Lorsque  le  navire  suspect  fut  eclaire  par  un  projecteur,  les  obser- 
vateurs crurent  reconnaitre  un  torpilleur  a grande  allure. 

C’est  d’apres  ces  apparences  que  I’Amiral  Rojdestvensky  fit  ouvrir 
le  feu  sur  ce  navire  inconnu. 

La  majorite  des  Commissaires  exprime  a ces  sujet  I’opinion  que  la 


612 


ORIGINAL  TEXTS 


responsabilite  de  cet  acte  et  les  resultats  de  la  cannonade  essuyee  par 
la  flottille  de  peche  incombent  a I’Amiral  Rojdestvensky. 

12.  Presque  aussitot  apres  I’ouverture  du  feu  par  tribord,  le 
“Souvoroff”  apergut  sur  son  avant  un  petit  bateau  lui  bar  rant  la  route 
et  fut  oblige  de  lancer  sur  la  gauche  pour  eviter  de  I’aborder.  Mais  ce 
bateau,  eclaire  par  un  projecteur,  fut  reconnu  etre  un  chalutier. 

Pour  empecher  que  le  tir  des  vaisseux  fut  dirige  sur  ce  batiment 
inoffensif,  I’axe  du  projecteur  fut  aussitot  releve  a 45".  vers  le  del. 

Ensuite,  I’Amiral  fit  adresser  par  signal  a I’escadre  I’ordre  “de  ne 
pas  tirer  sur  les  chalutiers.” 

Mais  en  meme  temps  que  le  projecteur  avait  eclaire  ce  bateau  de 
peche,  d’apres  les  depositions  des  temoins,  les  observateurs  du  “Sou- 
voroff” apergurent  a babord  un  autre  batiment  qui  leur  paru  suspect, 
a cause  de  ses  apparences  de  meme  nature  que  celles  de  I’objectif  du 
tir  par  tribord. 

Le  feu  fut  aussitot  ouvert  sur  ce  deuxieme  but  et  se  trouva  ainsi 
engage  des  deux  bords,  la  file  des  vaisseaux  etant  revenue  par  un 
mouvement  de  contre-marche  a sa  route  primitive  sans  avoir  change 
de  vitesse. 

13.  D’apres  les  ordres  permanents  de  I’escadre,  I’Amiral  indiquait 
les  buts  sur  lesquels  devait  dre  dirige  le  tir  des  vaisseaux  en  fixant 
sur  eux  ses  projecteurs.  Mais  comme  chaque  vaisseau  balayait  I’hori- 
son  en  tout  sens  autour  de  lui  avec  ses  propres  projecteurs  pour  se 
garder  d’une  surprise,  il  etait  difficile  qu’il  ne  se  produisit  pas  de 
confusion. 

Ce  tir,  d’une  durd  de  dix  a douze  minutes,  causa  de  graves  dom- 
mages  dans  la  flottille  des  chalutiers.  C’est  ainsi  que  deux  hommes 
furent  tues  et  six  autres  blessd;  que  le  “Crane”  sombra;  que  le 
“Snipe,”  le  “Mino,”  le  “Moulmein,”  le  “Gull,”  et  le  “Majestic”  re- 
gurent  des  avaries  plus  ou  moins  importantes. 

D’autre  part  le  croiseur  “Avrora”  fut  atteint  par  plusieurs  pro- 
jectiles. 

La  majorite  des  Commissaires  constate  qu’elle  manque  I’elements 
prdis  pour  reconnaitre  sur  quel  but  ont  tire  les  vaisseaux ; mais  les 
Commissaires  reconnaissent  unanimement  que  les  bateaux  de  la  flot- 
tille de  pdhe  n’ont  commis  aucun  acte  hostile;  et  la  majorite  des  Com- 
missaires etant  d’opinion  qu’il  n’y  avait,  ni  parmi  les  chalutiers,  ni 
sur  les  lieux,  ancun  torpilleur,  I’ouverture  du  feu  par  I’Amiral  Roj- 
destvensky r.’etait  pas  justifiable. 

Le  Commissaire  Russe,  ne  se  croyant  pas  fonde  a partager  cette 
opinion,  enonce  la  conviction  que  ce  sont  prdisement  les  bdiments 
suspects  s’approchant  de  I’escadre  dans  un  but  hostile  qui  ont  provoque 
le  feu. 

14.  Au  sujet  des  but  reels  de  ce  tir  nocturne,  le  fait  que  l’“Avrora” 
a regu  quelques  projectiles  de  47  millim.  et  de  75  millim.  serait  de 
nature  a faire  supposer  que  ce  croiseur,  et  peut-etre  meme  quelque 
autre  batiment  Russe,  attarde  sur  la  route  du  “Souvoroff”  a I’insu 
de  ce  vaisseau,  ait  pu  provoquer  et  attirer  les  premiers  feux. 

Cette  erreur  pouvait  etre  motivee  par  le  fait  que  ce  navire,  vu  de 


THE  NORTH  SEA  OR  DOGGER  BANK  CASE 


613 


Tarriere,  ne  montrait  aucune  lumiere  apparente,  et  par  une  illusion 
d’optique  nocturne  dont  les  observateurs  du  vaisseau-amiral  auraient 
ete  I’objet. 

A ce  propos  les  Commissaires  constatent  qu’il  leur  manque  des 
renseignements  importants  leur  permettant  de  connaitre  les  raisons  qui 
ont  provoque  la  continuation  du  tir  a babord. 

Dans  cette  conjecture  certains  chalutiers  eloignes  auraient  pu  etre 
confondus  ensuite  avec  les  buts  primitifs  et  ainsi  canonnes  directe- 
ment.  D’autres,  au  contraire,  ont  pu  etre  atteints  par  un  tir  dirige 
sur  des  buts  plus  eloignes. 

Ces  considerations  ne  sont  pas  d’ailleurs  en  contradiction  avec  les 
impressions  de  certains  chalutiers  qui,  en  se  voyant  atteints  par  des 
projectiles  et  restant  eclaires  dans  le  pinceau  des  projecteurs,  pou- 
vaient  se  croire  I’objet  d’un  tir  direct. 

15.  La  duree  du  tir  sur  tribord,  meme  en  se  plagant  au  point  de  vue 
de  la  version  Russe,  a semble  a la  majorite  des  Commissaires  avoir 
ete  plus  longue  qu’elle  ne  paraissait  necessaire. 

Mais  cette  majorite  estime  qu’elle  n’est  pas  suffisamment  renseignee 
ainsi  qu’il  vient  d’etre  dit,  au  sujet  de  la  continuation  du  tir  par 
babord. 

En  tout  cas,  les  Commissaires  se  plaisent  a reconnaitre  a I’unanimite 
que  I’Amiral  Rojdestvensky  a fait  personnellement  tout  ce  qu’il  pou- 
vait,  du  commencement  a la  fin,  pour  empecher  que  les  chalutiers,  re- 
connus  comme  tels,  fussent  I’objet  du  tir  de  I’escadre. 

16.  Quoiqu’il  en  soit,  le  “Dmitri  Donskoi”  ayant  fini  par  signaler  son 
numero,  I’Amiral  se  decida  a faire  le  signal  general  de  “cesser  le  feu” ; 
la  file  de  ses  vaisseaux  continua  alors  sa  route  et  disparut  dans  le 
sud-ouest  sans  avoir  stoppe. 

A cet  %ard,  les  Commissaires  sont  unanimes  a reconnaitre,  qu’apres 
les  circonstances  qui  ont  precede  I’incident  et  celles  qui  I’ont  produit, 
i!  y avait  a la  fin  du  tir  assez  d’incertitudes  au  sujet  du  danger  que 
courait  I’echelon  des  vaisseaux  pour  decider  I’Amiral  a continuer  sa 
route. 

Toutefois,  la  majorite  des  Commissaires  regrette  que  I’Amiral 
Rojdestvensky  n’ait  pas  eu  la  preoccupation,  en  franchissant  le  Pas  de 
Calais,  d’informer  les  autorites  des  Puissances  maritimes  voisines 
qu’ayant  ete  amene  a ouvrir  le  feu  pres  d’un  groupe  de  chalutiers,  ces 
bateaux,  de  nationalite  inconnue,  avaient  besoin  de  secours. 

17.  Les  Commissaires,  en  mettant  fin  a ce  Rapport,  declarent  que 
leurs  appreciations,  qui  s’y  trouvent  formulees,  ne  sont  dans  leur  esprit 
de  nature  a jeter  aucune  deconsideration  sur  la  valuer  militaire  ni  sur 
les  sentiments  d’humanite  de  I’Amiral  Rojdestvensky  et  du  personnel 
de  son  escadre. 

Spaun 

Fournier 

Doubassoff 

Lewis  Beaumont 

Charles  Henry  Davis 


614 


ORIGINAL  TEXTS 


Agreement  for  Inquiry,  November  12/ 2^,  1904^ 

Le  Gouvernement  de  Sa  Majeste  Britannique  et  le  Gouvernement 
Imperial  de  Russie  s’etant  mis  d’accord  pour  confier  a une  Commission 
Internationale  d’Enquete,  reunie  conformement  aux  Articles  IX-XIV 
de  la  Convention  de  La  Haye  du  29  (17)  Juillet  1899,  pour  le  regle- 
ment  pacifique  des  conflits  internationaux,  le  soin  d’eclaircir  par  un 
examen  impartial  et  consciencieux  les  questions  de  fait  se  rapportant 
a I’incident  qui  s’est  produit  durant  la  nuit  du  21-22  (8-9)  Octobre, 
1904,  dans  la  mer  du  Nord — au  cours  duquel  le  tir  des  pieces  de  canon 
de  la  flotte  Russe  occasionna  la  perte  d’un  bateau  et  la  mort  de  deux 
personnes  appartenant  a une  flotille  de  pecheurs  Britanniques,  ainsi 
que  des  dommages  a d’autres  bateaux  de  la  dite  flotille  et  des  blessures 
aux  equipages  de  quelques-uns  de  ces  bateaux — les  Soussignes,  dument 
autorises  a cet  effet,  sont  convenus  des  dispositions  suivantes : 

Art.  I.  La  Commission  Internationale  d’Enquete  sera  composee  de 
cinq  membres  (Commissaires),  dont  deux  seront  des  officers  de  haut 
rang  des  marines  Britannique  et  Imperiale  Russe  respectivement.  Les 
Gouvemements  de  France  et  des  fitats-Unis  d’Amerique  seront  pries 
de  choisir,  chacun,  un  de  leurs  officiers  de  marine  de  haut  rang  comme 
membre  de  la  Commission.  Le  cinquieme  membre  sera  elu  d’accord 
par  les  quatre  membres  susmentionnes. 

Dans  le  cas  ou  il  ne  se  produirait  pas  d’entente  entre  les  quatres 
Commissaires  pour  le  choix  du  cinquieme  membre  de  la  Commission, 
Sa  Majeste  I’Empereur  d’Autriche,  Roi  de  Hongrie,  sera  invite  a le 
nommer. 

Chacune  des  deux  Hautes  Parties  Contractantes  nommera  egale- 
ment  un  jurisconsulte-assesseur  avec  voix  consultative  et  un  agent, 
charges,  a titre  officiel,  de  prendre  part  aux  travaux  de  la  Commission. 

II.  La  Commission  devra  faire  une  enquete  et  dresser  un  rapport 
sur  toutes  les  circonstances  relatives  a I’incident  de  la  mer  du  Nord,  en 
particulier  sur  la  question  ou  git  la  responsabilite  et  sur  le  degre  de 
blame  concernant  les  ressortissants  des  deux  Hautes  Parties  Contrac- 
tantes ou  d’autres  pays,  dans  le  cas  ou  leur  responsabilite  se  trouverait 
constatee  par  I’enquete. 

III.  La  Commission  fixera  les  details  de  la  procedure  qui  sera  suivie 
par  elle  pour  I’accomplissement  de  la  tache  qui  lui  est  devolue. 

IV.  Les  deux  Hautes  Parties  Contractantes  s’engagent  a foumir  a 
la  Commission  Internationale  d’Enquete,  dans  la  plus  large  mesure 
qu’elles  jugeront  possible,  tous  les  moyens  et  les  facilites  necessaires 
pour  la  connaissance  complete  et  I’appreciation  exacte  des  faits  en 
question. 

V.  La  Commission  se  reunira  a Paris  aussitot  que  faire  se  pourra, 
apres  la  signature  de  cet  Arrangement. 

VI.  La  Commission  presentera  aux  deux  Hautes  Parties  Contrac- 
tantes son  rapport  signe  par  tous  les  membres  de  la  Commission. 

VII.  La  Commission  prendra  toutes  ses  decisions  a la  majorite  des 
voix  des  cinq  Commissaires. 


^British  and  Foreign  State  Papers,  vol.  97,  p.  77. 


THE  NORTH  SEA  OR  DOGGER  BANK  CASE 


615 


VIII.  Les  deux  Hautes  Parties  Contractantes  s’engagent  a garder 
chacune  a sa  charge,  par  reciprocite,  les  frais  de  I’enquete  faite  par 
elle  prealablement  a la  reunion  de  la  Commission.  Quant  aux  depenses 
qui  incomberont  a la  Commission  Internationale  d’Enquete  a partir  du 
moment  de  sa  reunion  pour  I’installation  de  ses  services  et  les  in- 
vestigations necessaires,  elles  seront  faites  en  commun  par  les  deux 
Gouvernements. 

En  foi  de  quoi  les  Soussignes  ont  signe  la  presente  Declaration  et  y 
ont  appose  le  sceau  de  leurs  armes. 

Fait  en  double  a Saint-Petersbourg,  le  25  (12)  Novembre,  1904. 

(L.  S.)  Charles  Hardinge 
(L.  S.)  Comte  Lamsdorff 


Supplementary  Protocol  of  November  12/2^,  1904,  to  the  Agreement 

for  Inquiry^ 

Les  Soussignes  se  sont  reunis  aujourd’hui  a I’Hotel  du  Ministere 
Imperial  des  Affaires  Etrangeres  pour  proceder  a la  signature  d’une 
Declaration  entre  le  Gouvernement  de  Sa  Majeste  Britannique  et  le 
Gouvernement  Imperial  de  Russie  concernant  I’institution  d'une  Com- 
mission Internationale  d’Enquete  au  sujet  de  I’incident  de  la  mer  du 
Nord. 

Apres  lecture  des  instruments  respectifs,  lesquels  ont  ete  trouves  en 
bonne  et  due  forme,  la  signature  de  la  dite  Declaration  a en  lieu  selon 
I’usage. 

En  foi  de  quoi  les  Soussignes  ont  dresse  le  present  Protocole  et  I’ont 
revetu  du  sceau  de  leurs  armes. 

Fait  en  double  a Saint-Petersbourg,  le  25  (12)  Novembre,  1904. 

(L.  S.)  Charles  Hardinge 
(L.  S.)  Comte  Lamsdorff 


^British  and  Foreign  State  Papers,  vol.  97,  p.  79. 


THE  TAVIGNANO,  CAMOUNA  AND  GAULOIS  CASES 


Report  of  the  Commission  of  Inquiry,  July  23,  iqi2^ 

Les  Commissaires,  apres  avoir  examine  et  rapproche  les  renseigne- 
ments  fournis,  tant  par  les  documents  presentes  par  les  deux  parties 
que  par  les  temoignages  recueillis,  apres  avoir  fait  la  part  d’importance 
qui  peut  revenir  a chacun  des  renseignements  recueillis  et  tenu  compte 
du  degre  d’incertitude  relative  de  chacun  d’eux,  a delibere  et  conclu 
ainsi  qu’il  suit : 

I 

Les  renseignements  et  les  documents  presentes  ne  sont  pas  de  nature 
a permettre  de  determiner  des  points  geographiques  precis  pour  les 
diverses  circonstances  soumises  a I’enquete,  mais  simplement  des  zones 
dans  lesquelles  ces  circonstances  se  seraient  produites,  sans  qu’il  soit 
possible  de  choisir  un  point  particulier  dans  ces  zones. 

1®.  Sur  le  point  ou  a ete  arrete  la  Tavignano. 

Ce  point  est  compris  a I’interieur  d’un  quadrilatere  rectiligne  deter- 
mine par  les  quatre  sommets  suivants: 


Sommet  C 
Sommet  B 
Sommet  A 
Sommet  D 


j Latitude 
1 Longitude 
I Latitude 
1 Longitude 
j Latitude 
I Longitude 
(Latitude 
I Longitude 


33°  29'  20"  Nord. 

8°  56'  40"  E^t  de  Paris. 
33°  29'  10"  Nord. 

8°  55'  10"  Est  de  Paris. 
33°  26'  30"  Nord. 

8°  54'  40"  Est  de  Paris. 
33°  26'  30"  Nord. 

8°  56'  40"  Est  de  Paris. 


2®.  En  ce  qui  concerne  la  poursuite  des  mahonnes. 

A.  Par  le  Fulmine. 

Le  Fulmine,  partant  d’un  point  indeterminable  de  la  zone  ci-dessus 
definie,  a poursuivi  les  mahonnes,  peut-etre  en  sortant  de  cette  zone, 
dans  une  direction  qui  n’a  pu  etre  precisee,  mais  qui  est  comprise  entre 
le  Sud-Est  et  le  Sud-Ouest  par  le  Sud. 

Les  mahonnes  poursuivies  se  trouvaient  aux  points  suivants,  qui 
sont  le  centre  d’un  cercle  d’incertitude  d’un  demi-mille  de  rayon: 


Camouna i Latitude 

( Longitude 

Gaulois  (Latitude 

I Longitude 


33°  24'  10"  Nord 

9°  (Xy  15"  Est  de  Paris 

33°  22'  40"  Nord 

8°  59'  55"  Est  de  Paris 


Official  report,  p.  177. 


THE  TAVIGNANO,  CAMOUNA  AND  GAULOIS  CASES  617 

Apres  cette  poursuite,  le  Fxdmine  est  revenu  mouiller  pres  du 
Tavignano,  en  un  point  H que  la  Commission  choisit  comme  centre 
d’un  cercle  d’incertitude  d’un  demi-mille  de  rayon. 

B.  Le  Canopo  a canonne  la  mahonne  Gaulois  alors  que  cette  ma- 
honne  se  trouvait  au  point  indique  ci-dessus  et  que  lui  Canopo 
provenait,  avec  le  cap  au  Nord,  du  point  indique  dans  son  rapport  de 
mer  par 


Latitude  33°  20'  45"  Nord 

Longitude  9°  00'  50"  Est  de  Paris 

et  que  la  Commission  adopte  egalement  comme  centre  d’un  cercle 
d’incertitude  d’un  demi-mille  de  rayon. 

La  visite  des  deux  mahonnes  Camouna  et  Gaulois  par  le  Canopo 
a eu  lieu  en  un  point  determine  par 

Latitude  33°  22'  00"  Nord 

Longitude  9°  00'  25"  Est  de  Paris 

et  qui  est  le  centre  d’un  cercle  d’incertitude  d’un  demi-mille  de  rayon. 

La  Commission,  apres  sa  visite  sur  les  lieux,  et  a la  suite  de  ses 
constatations  dans  les  eaux  de  Zarzis,  decide  de  s’en  rapporter,  pour 
I’hydrographie,  la  configuration  et  la  nature  de  la  cote  et  des  bancs 
avoisinants,  a la  carte  frangaise  du  Service  hydrographique  N®.  4247. 
Elle  rappelle  que  ses  constatations  ont  fait  I’objet  de  son  proces-verbal 
en  date  du  15  juillet  1912  et  classe  sous  la  cote  68. 

Le  President  ayant  donne  lecture  du  present  rapport  a MM.  les 
Commissaires,  ce  rapport  et  ses  conclusions  ont  ete  adoptes  a 
I’unanimite. 

Fait  a Malte,  en  trois  exemplaires,  le  23  juillet  1912. 

Les  Commissaires:  Giuseppe  Genoese  Zerbi 
SOMBORN 

Segrave 


Agreement  for  Inquiry,  May  20,  igi2^ 


Le  Gouvemement  de  la  Repu- 
blique  fran(jaise  et  le  Gouveme- 
ment Royal  italien,  egalement 
desireux  de  pourvoir  au  regle- 
ment  des  difficultes  auxquelles  ont 
donne  lieu  la  capture  ct  la  saisie 
momentane  du  vapeur  postal  fran- 
qais  Tavignano,  le  25  Janvier  1912, 
par  le  batiment  de  la  Marine 


II  R.  Govemo  italiano  e il  Go- 
verno  della  Repubblica  Francese, 
mossi  da  egual  desiderio  di  prov- 
vedere  al  regolamento  delle  diffi- 
colta  cui  hanno  dato  luogo  la  cat- 
tura  ed  il  sequestro  temporaneo 
del  piroscafo  postale  francese 
Tavignano,  il  25  gennaio  1912,  da 
parte  della  nave  della  R.  Marina 


^Official  report,  pp.  7,9. 


618 


ORIGINAL  TEXTS 


royale  italienne  Fulmine,  ainsi  que 
le  tir  effectue  sur  les  mahonnes 
Camouna  et  Gaulois,  le  25  janvier 
1912,  par  le  torpilleur  italien 
Canopo, 

Ont  resolu,  conformement  au 
titre  III  de  la  Convention  de  La 
Haye,  du  18  octobre  1907,  pour  le 
reglement  pacifique  des  conflits  in- 
temationaux,  de  confier  a une 
Commission  intemationale  d’en- 
quete  le  soin  d’elucider  les  circon- 
stances  de  fait  dans  lesquelles  les- 
dites  capture  et  saisie  et  ledit  tir 
ont  ete  effectues. 

Et  sont,  a cet  eflfet,  convenus 
des  dispositions  suivantes: 

Article  1 

Une  Commission  intemationale 
d’enquete  composee,  comme  il  est 
dit  ci-apres,  est  chargee  de : 

I.  Rechercher,  relever  et  pre- 
ciser  le  point  geographique  ou  ont 
ete  effectues;  1°.  Tarrestation  du 
vap>eur  postal  frangais  Tavignano, 
par  le  batiment  de  la  Marine 
royale  italienne  Fulmine,  le  25 
janvier  1912 ; 2®.  la  poursuite  des 
mahonnes  Camouna  et  Gaulois, 
par  le  meme  batiment,  puis  par  le 
batiment  de  la  Marine  royale 
italienne  Canopo  et  le  tir  effectue 
par  ce  dernier  sur  lesdites  ma- 
honnes. 

II.  Preciser  I’hydrographie,  la 
configuration  et  la  nature  de  la 
cote  et  des  bancs  avoisinants,  la 
distance  entre  eux  des  differents 
fXDints  que  Tun  ou  I’autre  des  Com- 
missaires  jugeront  utiles  de  rele- 
ver, et  la  distance  de  ces  points 
a ceux  ou  se  sont  passes  les  faits 
susvises. 

III.  Consigner  dans  un  rapport 
ecrit  le  resultat  de  ses  investiga- 
tions. 


italiana  Fulmine,  ed  il  tiro  ese- 
guito  contro  le  maone  Camouna  e 
Gaulois,  il  25  gennaio  1912,  da 
parte  della  torpediniera  italiana 
Canopo, 

Hanno  stabilito,  in  conformita 
del  titolo  III  della  Convenzione 
dell’Aja  dell’  18  ottobre  1907  per 
il  regolamento  pacifico  dei  con- 
flitti  intemazionali,  di  affidare  ad 
una  Commissione  intemazionale 
d’inchiesta  il  compito  di  chiarire  le 
circostanze  di  fatto  nelle  quali  la 
cattura,  il  sequestro  ed  il  tiro  pre- 
detti  furono  eseguiti; 

E sono,  a questo  fine,  convenuti 
delle  disposizioni  seguenti: 

Articolo  I 

Una  commissione  intemazionale 
d’inchiesta  composta  come  sera 
detto  in  seguito,  e incaricata  di : 

1)  Cercare,  rilevare  e precisare 
il  punto  geografico  in  cui  furono 
eseguiti : o)  il  fermo  del  piroscafo 
postale  francese  Tavignano  da 
parte  della  nave  della  R.  Marina 
italiana  Fulmine,  il  25  gennaio 
1912;  b)  I’insegnimento  delle 
maone  Camouna  e Gaulois  da 
parte  della  medesima  nave  e poi 
della  nave  della  R.  Marina  italiana 
Canopo,  ed  il  tiro  eseguito  da 
quest’ultima  contro  le  maone  sud- 
dette ; 

2)  Precisare  I’idrografia,  la  con- 
figurazione  e la  natura  della  costa 
e dei  banchi  adiacento,  la  distanza 
tra  loro  dei  diversi  punti  che  I’uno 
o I’altro  dei  commissari  stimera 
utile  di  rilevare,  e la  distanza  tra 
questi  punti  e quelli  in  cui  sono 
accaduti  i fatti  sopra  ennuciati ; 

3)  Conseguare  in  un  rapporto 
scritto  il  resultato  delle  sue  in- 
dagini. 


THE  TAVIGNANO,  CAMOUNA  AND  GAULOIS  CASES 


619 


Article  2 

La  Commission  intemationale 
d’enquete  sera  composee  de  trois 
Commissaires,  dont  deux  seront 
des  officiers  des  Marines  nation- 
ales  frangaise  et  italienne,  d’un 
grade  au  moins  egal  a celui  de 
Capitaine  de  fregate.  Le  Gou- 
vernement  de  Sa  Majeste  britan- 
nique  sera  prie  de  choisir  le 
troisieme  Commissaire  parmi  ses 
officiers  de  marine  d’un  grade 
superieur  ou  plus  anciens  en 
grade.  Celui-ci  remplira  les  func- 
tions de  president. 

Deux  secretaires  seront  charges 
de  remplir  les  functions  de  gref- 
fiers  de  la  Commission  et  d’assis- 
ter  celle-ci  dans  ses  op>erations, 
I’un  etant  designe  par  le  Gou- 
vernement  de  la  Republique  fran- 
qaise,  et  I’autre  par  le  Gouveme- 
ment  royal  italien. 


Article  3 

La  Commission  intemationale 
d’enquete  aura  qualite  pour  s’en- 
tourer  de  tous  renseignements,  in- 
terroger  et  entendre  tous  temoins, 
examiner  tous  papiers  de  bord  de 
I’un  ou  de  I’autre  desdits  navires, 
batiments  et  mahonnes,  proceder, 
s’il  y a lieu,  aux  sondages  neces- 
saires,  et  en  general  recourir  a 
tous  moyens  d’information  propres 
a assurer  la  manifestation  de  la 
verite. 

Les  deux  Gouvemements  s’en- 
gagent  a cet  egard  a foumier  a la 
Commission,  dans  la  plus  large 
mesure  qu’ils  jugeront  possible, 
tous  les  moyens  et  facilites  et 
notamment  les  moyens  de  trans- 
port lui  permettant  d’accomplir  sa 
tache. 


Articolo  II 

La  commissione  intemazionale 
d’inchiesta  sara  composta  di  tre 
(commissari,  due  dei  quali  saranno 
ufficiali  delle  marine  nazionali 
italiana  e francese,  di  grado  eguale 
almeno  a quello  di  capitano  di> 
fregata.  II  Govemo  di  Sua 
Maesta  Britannica  sara  pregato  di 
scegliere  il  terzo  commissario  tra 
i suoi  ufficiali  di  Marina  di  grado 
superiore  o piu  anziani  in  grado. 
Quest’ultimo  adempira  le  fun- 
zioni  di  presidente. 


Due  segretari,  designati  uno  dal 
R.  Governo  Italiano,  I’altro  dal  Go- 
vemo della  Repubblica  francese, 
saranno  incaricati  di  adempiere  le 
funzioni  di  cancellieri  della  Com- 
missione e di  assisterla  nei  suoi 
atti. 


Articolo  III 

La  Commissione  intemazionale 
d’inchiesta  avra  veste  per  rac- 
cogliere  qualsiasi  informazione, 
interrogare  ed  ascoltare  qualsiasi 
testimone,  esaminare  qualsiasi 
carta  di  bordo  dell’una  o dell’altra 
delle  dette  navi  e maone,  proce- 
dere  occorrendo  agli  scandagli 
necessari,  e,  in  generale,  ricorrere 
a qualsiasi  mezzo  di  indagine  atto 
ad  assicurare  la  manifestazione 
della  verita. 

I due  Govern!  s’impegnano  a 
questo  riguardo  di  fomire  alia 
Commissione,  nella  piu  larga 
misura  che  stimeranno  possibile, 
tutti  i mezzi  e le  facilitazioni,  e 
particolarmente  i mezzi  di  tras- 
porto,  che  le  permettano  di  adem- 
piere il  compito  suo. 


620 


ORIGINAL  TEXTS 


Article  4 

La  Commission  internationale 
d’enquete  se  reimira  a Malte  aus- 
sitot  que  faire  se  pourra  et  aura  la 
faculte  de  se  deplacer  conforme- 
ment  a I’article  20  de  la  Conven- 
tion de  La  Haye,  du  18  octobre 
1907,  pour  le  reglement  pacifique 
des  conflits  intemationaux. 


Articolo  IV 

La  Commissione  intemazionale 
d’inchiesta  si  riunira  a Malta  ap- 
pena  sara  possibile  e avra  facolta 
di  spostarsi,  conformemente  all’ar- 
ticolo  20  della  convenzione  dell’- 
Aja  del  18  ottobre  1907  per  il 
regolamento  pacifico  dei  confliti 
intemazionali. 


Article  5 

La  langue  frangaise  est  la 
lang^e  de  la  Commission  intema- 
tionale  d'enquete;  toutefois,  dans 
leurs  deliberations,  les  Commis- 
saires  pourront  faire  usage  de  leur 
propre  langue. 


Articolo  V 

La  lingua  francese  e la  lingua 
della  Commissione  intemazionale 
d’inchiesta ; i commissari  potranno 
tuttavia  servirsi  della  propria  nelle 
loro  deliberazioni. 


Article  6 

Dans  un  delai  qui  n’excedera 
pas  quinze  jours,  a dater  de  sa 
premiere  reunion,  la  Commission 
internationale  d’enquete  arretera 
les  conclusions  de  son  rapport  et 
les  communiquera  a chacun  des 
deux  Gouvemements. 

Article  7 

Chaque  Partie  supportera  ses 
propres  frais  et  une  part  egale  des 
frais  de  la  Commission. 

Article  8 

Pour  tout  ce  qui  n’est  pas  prevu 
par  la  presente  convention  d’en- 
quete, et  notamment  pour  la  pro- 
cedure d’enquete,  les  dispositions 
de  la  Convention  de  La  Haye,  du 
18  octobre  1907,  pour  le  reglement 
pacifique  des  conflits  internation- 
aux,  seront  applicables  a la  pre- 
sente Commission  internationale 
d’enquete. 

Fait  en  double  exemplaire,  a 
Rome,  le  20  mai  1912. 

Signe:  Cam 

DI  SA 


Articolo  VI 

Entro  un  termine  non  maggiore 
di  15  giorni,  a datare  dalla  sua 
prima  riunione,  la  Commissione 
intemazionale  d’inchiesta  deter- 
minera  le  conclusion!  del  suo  raj)- 
porto  e le  communichera  a cias- 
cuno  dei  due  govern!. 

Articolo  VII 

Ciascuna  parte  sosterra  le  pro- 
prie  sp>ese  e una  quota  eguale  di 
quelle  della  commissione. 

Articolo  VIII 

Per  tutto  cio  che  non  e preve- 
duto  dalla  presente  convenzione, 
saranno  applicabili  alia  Commis- 
sione le  disposizioni  della  Conven- 
zione dell’Aja  del  18  ottobre  1907 
per  il  regolamento  pacifico  dei 
conflitti  intemazionali. 


Fatto  in  doppio  esemplare,  a 
Roma,  il  20  maggio  1912. 

LE  Barrere 
Giuliano 


THE  TAVIGNANO,  CAMOUNA  AND  GAULOIS  CASES  621 

Agreement  of  April  15,  igi2,  relative  to  the  Arbitration  of  the 
“Tavignano,"  “Camouna”  and  “Gaulois”  Cases^ 

Les  Gouvernements  frangais  et  italien  decident  de  soumettre  a une 
Commission  intemationale  d’enquete  les  questions  de  fait  soulevees : 

1°.  Au  sujet  de  la  saisie  du  vapeur  frangais  Tavignano  par  le  tor- 
pilleur  italien  Fulmine,  le  25  janvier  1912  dans  les  parages  de  Ras- 
Zira ; 

2*.  Au  sujet  des  coups  de  canon  tires  par  le  torpilleur  Canopo  le 
meme  jour  et  dans  les  memes  parages  sur  les  deux  mahonnes 
tunisiennes  Kamouna  et  Gaulois. 

Apres  que  ladite  Commission  international  aura  termine  son  en- 
quete,  le  resultat  en  sera  transmis  s’il  y a lieu  au  meme  tribunal  arbi- 
tral charge  de  statuer  sur  les  affaires  du  Carthage  et  du  Manouba, 
afin  qu’il  se  prononce  sur  les  questions  de  droit,  qu’il  etablisse  les  re- 
sponsabilites  et  qu’il  determine  les  reparations  morales  et  materielles 
qu’elles  comporteraient. 

Rome,  le  15  avril  1912. 

Signe:  Camille  Bareere 
DI  SAN  GiULIANO 


Compromis  of  Arbitration,  November  8,  IQI2^ 

Le  Gouvernement  de  la  Republique  Frangaise  et  le  Gouvernement 
Royal  Italien  s’etant  mis  d’accord  le  15  avril  1912, 

1°.  Pour  soumettre  a une  Commission  intemationale  d’enquete  les 
questions  de  fait  soulevees  au  sujet  de  la  saisie  du  vapeur  frangais 
Tavignano  par  le  torpilleur  italien  Fulmine,  le  25  janvier  1912,  dans 
les  parages  de  Ras-Zira  et  au  sujet  des  coups  de  canon  tires  par  le 

torpilleur  italien  Canopo,  le  meme  jour  et  dans  les  memes  parages,  sur 

les  deux  mahonnes  tunisiennes  Kamouna  et  Gaulois; 

2®.  Pour  transmettre,  s’il  y avait  lieu,  le  resultat  de  I’enquete  au 
Tribunal  arbitral  charge  de  statuer  sur  les  affaires  du  Carthage  et  du 

Manouba,  afin  qu’il  se  prononce  sur  les  questions  de  droit,  qu’il 

etablisse  les  responsabilites  et  qu’il  determine  les  reparations  morales 
et  materielles  qu’elles  comporteraient, 

Ayant  pris  connaissance  du  rapport  presente  le  23  juillet  1912  par 
ladite  Commission  Internationale  d’enquete, 

Les  soussigpies,  dument  autorises  a cet  effet,  sont  convenus  du  Com- 
promis suivant: 

Article  I*'" 

Le  Tribunal  arbitral  charge  de  statuer  sur  les  affaires  du  Carthage 
et  du  Manouba  est  aussi  charge  de  statuer  sur  les  incidents  conceraant 
la  saisie  du  vapeur  frangais  Tavignano  et  les  coups  de  canon  tires  sur 
les  mahonnes  tunisiennes,  afin  de  se  prononcer  sur  les  questions  de 


^Official  report,  Memoire  of  the  French  Republic,  p.  5,  note  1. 
mid.,  p.  S. 


622 


ORIGINAL  TEXTS 


droit,  d’etablir  les  responsabilites  et  de  determiner  les  reparations 
morales  et  materielles  qu’elles  comporteraient. 

Article  2 

Pour  ce  qui  conceme  les  questions  de  fait  soulevees  par  les  deux 
incidents,  le  Tribunal  arbitral  devra  faire  etat  du  rapport  presente  par 
la  Commission  internationale  d’enquete  le  23  juillet  1912,  ainsi  que 
des  proces-verbaux  de  ladite  Commission. 

Ledit  rapport  et  lesdits  proces-verbaux  seront  imprimes  a frais 
communs  par  les  soins  des  Parties  et  dans  le  plus  bref  delai  possible. 

Article  3 

A la  date  du  15  janvier  1913,  chaque  Partie  deposera  au  Bureau  de 
la  Cour  Permanente  d’arbitrage  quinze  exemplaires  de  son  memoire, 
avec  les  copies  certifiees  conformes  de  tons  les  documents  et  pieces 
qu’elle  compte  invoquer  dans  la  cause. 

Le  Bureau  en  assurera  sans  retard  la  transmission  aux  arbitres  et 
aux  Parties,  savoir  deux  exemplaires  pour  chaque  arbitre,  trois  exem- 
plaires pour  la  Partie  adverse;  deux  exemplaires  resteront  dans  les 
archives  du  Bureau. 

A la  date  du  1®''  mars  1913,  chaque  Partie  deposera,  dans  les  memes 
conditions  que  ci-dessus,  son  contre-memoire  avec  les  pieces  a I’appui 
et  ses  conclusions  finales. 

Le  Tribunal  se  reunira  a La  Haye  dans  la  seconde  quinzaine  de 
mars  sur  la  convocation  de  son  President. 

Article  4 

Pour  tout  ce  qui  n’est  pas  prevu  par  le  present  Compromis,  les 
dispositions  des  Compromis  du  6 mars  1912  et  de  I’Accord  du  4 avril 
1912  seront  applicables  au  present  litige. 

Fait  a Paris,  le  8 novembre  1912. 

Sig^ne:  L.  Renault 
Signer  G.  Fusinato 


Agreement  of  May  2,  1913,  Settling  Definitively  the  “Tazhgnano,” 
“Camouna”  and  "Gaulois”  Controversy^ 

Les  deux  affaires  du  “Carthage”  et  du  “Manouba”  etant  sur  le  point 
d’etre  reglees  par  jugement  arbitral,  le  Gouvernement  de  la  Republique 
frangaise  et  le  Gouvernement  royal  italien  ont  considere  qu’un  ar- 
rangement direct  de  I’affaire  concernant  le  “Tavignano”  et  les  deux 
mahonnes  tunisiennes  serait,  par  la  nature  meme  de  ce  differend,  par- 
ticulierement  desirables.  Les  deux  Gouvernements  son  d’autant  plus 
disposes  a entrer  dans  cette  voie  qu’elle  leur  ofFre  une  nouvelle  occasion 

>Copy  furnished  by  the  International  Bureau  of  the  Permanent  Court  of 
Arbitration. 


THE  TAVIGNANO,  CAMOUNA  AND  GAULOIS  CASES 


623 


de  manifester  I’esprit  de  cordiale  amitie  qui  les  anime  mutuellement. 
A cet  egard,  ils  sont  tombes  d’accord  qu’il  serait  equitable  d’indemniser 
les  particuliers  a raison  des  dommages  qu’ils  ont  souf¥erts.  Le  Gou- 
vemement  royal  italien  s’etant  declare  pret  a verser  a cet  eflfet  la 
somme  de  cinq  mille  francs,  le  Gouvernement  de  la  Republique  fran- 
caise  a declare  qu’il  I’accepte  et  qu’il  considere  cette  affaire  comme 
etant  ainsi  definitivement  reglee. 

Les  soussignes  ont  constate  I’accord  de  leurs  Gouvernements  par  le 
present  acte  pour  valoir  ce  que  de  droit. 

Signe:  L.  Renault 
Signe:  G.  Fusinato 


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INDEX 


INDEX 


PAGE 


Abd-el-Kerim  ben  Mansour,  Moroccan  soldier,  German  Consulate  at  Casablanca, 

Casablanca  Case  113 

Acevedo,  Feliciano,  as  Minister  of  the  Interior  of  Venezuela,  signed  Grell  contract, 

Orinoco  Steamship  Company  Case 258,  260 

Adhesions 

Agreements  for  arbitration,  Venezuelan  Preferential  Case 

Belgium  64 

France  64 

Mexico  64 

Netherlands  64 

Spain  64 

Sweden  and  Norway  64 

United  States  64 

Hague  Conventions  for  the  pacific  settlement  of  international  disputes 

1899  Convention  cii 

1907  Convention  cv 

Agents 

Carthage  Case 

Fromageot,  Henri,  agent  for  France  331 

Ricci-Busatti,  Arturo,  agent  for  Italy 331 

Casablanca  Case 

Lentze,  Albrecht,  agent  for  Germany  112 

Weiss,  Andre,  agent  for  France 112 

Grisbadarna  Case 

Johanssen,  Kristen,  agent  for  Norway 122 

Montan,  C.  O.,  agent  for  Sweden  122 

Manouba  Case 

Fromageot,  Henri,  agent  for  France  344 

Ricci-Busatti,  Arturo,  agent  for  Italy 344 

Russian  Indemnity  Case 

Clunet,  fidouard,  agent  for  Turkey 299 

Fromageot,  Henri,  agent  for  Russia 299 

Savarkar  Case 

Crowe,  Eyre,  agent  for  Great  Britain  277 

Weiss,  Andre,  agent  for  France 277 

"Agordat,”  The.  See  "Carthage”  Case;  "Manouba”  Case. 

Agreements  for  arbitration.  See  also  Conventions,  protocols,  treaties,  etc. 

Canevaro  Case 

Agreement  of  April  25,  1910 

English  translation  294 

Italian  text  528 

Spanish  text  528 

Supplementary  notes  of  April  27,  1910 

English  translation  296 

Spanish  text  530 


628 


INDEX 


PAGE 

Carthage  Case 

Agreement  of  March  6,  1912 

English  translation  336 

French  text  561 

Supplementary  agreement  of  April  4,  1912 

English  translation  340 

French  text  563 

Casablanca  Case 

Agreement  of  November  24,  1908 

English  translation  117 

French  text  484 

GrUbadarna  Case 

Agreement  of  March  14,  1908 

English  translation  133 

Norwegian  text  496 

Swedish  text  496 

Island  of  Timor  Case 

Agreement  of  April  3,  1913 

English  translation  387 

French  text  596 

Japanese  House  Tax  Case 

Agreements  of  August  28,  1902 

English  text  85 

French  text  461 

German  text  457 

Manouba  Case 

Agreement  of  Mvch  6,  1912 

English  translation  351 

French  text  571 

Supplementary  agreement  of  April  4,  1912  (see  Carthage  Case) 

English  text  340 

French  text  563 

Muscat  Dhows  Case 
Agreement  of  October  13,  1904 

English  text  101 

French  text  471 

Supplementary  protocol  of  January  13,  1905 

English  text  108 

French  text  477 

Supplementary  protocol  of  May  19,  1905 

English  text  109 

French  text  477 

North  Atlantic  Coast  Fisheries  Case 

Agreement  of  January  27,  1909 147 

Supplementary  correspondence  of  January  27-March  4,  1909 215 

Orinoco  Steamship  Company  Case 
Agreement  of  February  13,  1909 

English  text  235 

Spanish  text  508 

Pious  Fund  Case 

Agreement  of  May  22,  1902 

English  text  7 

Spanish  text  432 

Russian  Indemnity  Case 

Agreement  of  July  22/August  4,  1910 

English  translation  324 

French  text  551 

Savarkar  Case 

Agreement  of  October  25,  1910 

English  text  280 

French  text  51° 


INDEX 


629 


PAGE 

Supplementary  notes  of  October  25,  1910 

English  note  282 

French  note 

English  translation  282 

French  text  520 

Tavignano,  Camouna  and  Gaulois  Cases 
Agreement  of  November  8,  1912 

English  translation  419 

French  text  621 

Venezuelan  Preferential  Case 
Agreement  of  May  7,  1903 

English  text  62 

German  text  445 

A^eements  for  Inquiry- 

North  Sea  or  Dogger  Bank  Case 
Agreement  of  November  12/25,  1904 

English  translation  410 

French  text  614 

Supplementary  protocol  of  November  12/25,  1904 

English  translation  412 

French  text  615 

Tavignano,  Camouna  and  Gaulois  Cases 
Agreement  of  May  20,  1912 

English  translation  417 

French  text  617 

Italian  text  617 

Ahmed  K6chld  Bey,  arbitrator,  Russian  Indemnity  Case 297,  299 

-“Aldebaran,”  The.  See  Russian  Indemnity  Case. 

Alenaany,  Joseph  S.,  Archbishop  of  San  Francisco,  claimant.  Pious  Fund  Case 7,48 

Alvarez  Calder6n,  Manuel,  arbitrator,  Canevaro  Case  284,  286 

Amat,  Thaddeus,  Bishop  of  Monterey,  claimant.  Pious  Fund  Case 7,  48,  53 

Anderson,  Chandler  P.,  as  plenipotentiary  of  United  States,  signed  agreement  of 

July  20,  1912,  North  Atlantic  Coast  Fisheries  Case 221,225 

Aniage,  Don  Nicolas  de,  founder  of  the  Pious  Fund,  Pious  Fund  Case 39 

Annuities  claimed  by  prelates  of  Roman  Catholic  Church  of  California,  origin  of 

dispute  in  Pious  Fund  Case  2,3,6 

Anzilotti,  Dionisio 

Counsel  for  Italy,  before  the  tribunal 

Carthage  Case  331 

Manouba  Case  344 

Appeal,  cases  on 

Orinoco  Steamship  Company  Case 226 

Pious  Fund  Case  1 

Arbitration  agreements.  See  Agreements  for  arbitration. 

Ajhitrators 

Canevaro  Case 

Alvarez  Calderon,  Manuel,  Peruvian  appointee 284,286 

Fusinato,  Guido,  Italian  appointee  284,  286 

Renault,  Louis,  president  of  the  tribunal  284,286,294 


630 


INDEX 


PAGE 

Carthage  Case 

Fusinato,  Guido  329,  330,  340 

Hammarskjold,  Knut  Hjalmar  Leonard,  president  of  the  tribunal. 329,  330,  331,  336,  340 

Kriege,  J 329,  331,  340 

Renault,  Louis  329,331,  340 

Taube,  Baron  Michel  de  329,331,  340 

Casablanca  Case 

Fry,  Sir  Edward,  French  appointee  110,111 

Fusinato,  Guido,  German  appointee  110,111 

Hammarskjold,  Knut  Hjalmar  Leonard,  umpire 110,  112,  117 

Kriege,  J.,  German  appointee  110,  112 

Renault,  Louis,  French  appointee  110,111 

Grisbadarna  Case 

Beichraann,  F.  V.  N.,  Norwegian  appointee 121,122 

Hammarskjold,  Knut  Hjalmar  Leonard,  Swedish  appointee 121,122 

Loeff,  J.  A.,  president  of  the  tribunal 121,122,133 


Island  of  Timor  Case 

Lardy,  Charles  Edouard  3S4 

Japanese  House  Tax  Case 

Gram,  Greg^ers,  umpire  77,  79,  84 

Motono,  Itchiro,  Japanese  appointee  77,  79,  85 

Renault,  Louis,  French,  German  and  British  appointee 77,  79,  84 

Manouba  Case 

Fusinato,  Guido  342,343 

Hammarskjold,  Knut  Hjalmar  Leonard,  president  of  the  tribunal 342,  343,  351 

Kriege,  J.,  342,  343 

Renault,  Louis  342,  343 

Taube,  Baron  Michel  de  342,  343 

Muscat  Dhows  Case 

Fuller,  Melville,  W.,  British  appointee 93,  95,  101 

Lammascb,  H.,  umpire  93,  95,  101 

Savornin  Lohman,  Jonkheer  A.  F.  de,  French  appointee 93,95,101 

North  Atlantic  Coast  Fisheries  Case 


Drago,  Luis  Maria  142,155,193 

Fitzpatrick,  Sir  Charles  142,  155,  193 

Gray,  George  142,  155,  193 

Lammasch,  H.,  president  of  the  tribunal  142,  155,  193 

Savornin  Lohman,  Jonkheer  A.  F.  de 142,155,  193 

Orinoco  Steamship  Company  Case 

Beernaert,  Auguste  M.  F 227,229 

Lammasch,  H.,  umpire  227,229,  234 

Quesada,  Gonzalo  de  227,  229 

Pious  Fund  Case 

Asser,  T.  M.  C.,  Mexican  appointee 2,4,7 

Fry,  Sir  Edward,  United  States  appointee 2,  3,  7 

Martens,  F.,  United  States  appointee 2,  3,  7 

Matzen,  Henning,  umpire  and  president  of  the  tribunal 2,  4,  7 

Savornin  Lohman,  Jonkheer  A.  F.  de,  Mexican  appointee . 2,4,7 

Russian  Indemnity  Case 

Ahmed  Richid  Bey,  Turkish  appointee 297,  299 

Herante  Abro  Bey,  Turkish  appointee  297,  299 

Lardy,  Charles  Edouard,  umpire  297,  298,323 

Mandelstam,  Andri,  Russian  appointee  297,299 

Taube,  Baron  Michel  de,  Russian  appointee 297,298 

Savarkar  Case 

Beernaert,  Auguste  M.  F.,  president  of  the  tribunal 275,  276 

Desart,  Lord  275,  276 

Gram,  Gregers  275,276 

Renault,  Louis  275,276 

Savornin  Lohman,  Jonkheer  A.  F.  de 275,  276 

Tabular  statement  of  ^23 


INDEX 


631 


PAGE 

Venezuelan  Preferential  Case 

Lammasch,  H 56,  57,  61 

Martens,  F 56,  57,  61 

Mourawieff,  N.  V.,  president  of  the  tribunal 56,57,61 

Arco  Valley,  Count  von,  as  plenipotentiary  of  Germany,  signed  agreement  for  arbitra- 
tion, Japanese  House  Tax  Case  87 

Asser,  T.  M.  C.,  arbitrator.  Pious  Fund  Case  2,  4,  7 


Awards 

Canevaro  Case,  May  3,  1912 

English  translation  285 

French  text  522 

Carthage  Case,  May  6,  1913 

English  translation  330 

French  text  556 

Casablanca  Case,  May  22,  1909 

English  translation  Ill 

French  text  479 

Grisbadarna  Case,  October  23,  1909 

English  translation  122 

French  text  487 

Island  of  Timor  Case,  June  25,  1914 

English  translation  355 

French  text  574 

Japanese  House  Tax  Case,  May  22,  1905 

English  translation  78 

French  text  452 

Manouba  Case,  May  6,  1913 

English  translation  342 

French  text  565 

Muscat  Dhows  Case,  August  8,  1905 

English  official  translation  95 

French  text  467 

North  Atlantic  Coast  Fisheries  Case,  September  7,  1910 146 

Orinoco  Steamship  Company  Case 

Award  of  Dr.  Barge,  umpire  in  original  case  before  claims  commission  of  1903, 

February  22,  1904  255 

Award  of  the  arbitral  tribunal,  October  25,  1910 

English  official  translation  228 

French  text  504 

Pious  Fund  Case 

Award  of  Sir  Edward  Thornton,  umpire  in  original  case  before  claims  commission 

of  1868,  November  11,  1875  48 

Revision  of,  Oetober  24,  1876  53 

Award  of  the  arbitral  tribunal,  October  14,  1902 

English  translation  3 

French  text  429 

Russian  Indemnity  Case,  November  11,  1912 

English  translation  298 

French  text  532 

Savarkar  Case,  February  24,  1911 

English  text  276 

French  text  516 

Tabular  statement  of  423 

Venezuelan  Preferential  Case,  February  22,  1904 

English  text  56 

French  text  441 


632 


INDEX 


PAGE 

Azplroz,  Mannel  de 

As  plenipotentiary  of  Mexico,  signed  agreement  for  arbitration 

Pious  Fund  Case  8,  12 

Venezuelan  Preferential  Case 64 

Bacon,  Robert,  signed  American  note  of 

February  21,  1909,  North  Atlantic  Coast  Fisheries  Case 217 

March  4,  1909,  North  Atlantic  Coast  Fisheries  Case 219 

Bainbridge,  William  E„  American  commissioner,  original  Orinoco  Steamship  Com- 
pany Case,  before  claims  commission  of  1903,  opinion 240 

“Bakan,”  Tbe.  See  North  Sea  or  Dogger  Bank  Case. 

Barge,  Charles  Angnstinns  Henri,  umpire,  original  Orinoco  Steamship  Company 

Case  before  claims  commission  of  1903 227,  230,234,  236 

Award,  February  22,  1904 2SS 

Barr^re,  Camille,  as  plenipotentiary  of  France,  signed  agreements  for  inquiry, 

Tavignano,  Camouna  and  Caulois  Cases  419 

Beanmont,  Admiral  Bewls,  commissioner.  North  Sea  or  Dogger  Bank  Case 410 

Beernaert,  Angnste  M.  F. 

Arbitrator,  Orinoco  Steamship  Company  Case  227,  229 

President  of  the  tribunal,  Savarkar  Case 275,276 

Belchmann,  F.  V.  N.,  arbitrator,  Grisbadarna  Case  121,122 

Belglnm 

Arbitration:  Venezuelan  Preferential  Case  (Belgium,  Venezuela  et  al.  vs.  Ger- 
many, Great  Britain  and  Italy)  55 

Bens,  Walter,  deserter  from  the  French  Foreign  Legion  at  Casablanca,  Casablanca 

Case  113 

Blockade  of  Teneznelan  ports.  See  Venezuelan  Preferential  Case. 

Bolognesl,  Count  Oiulio,  signed,  for  Italy, 

Agreement  for  arbitration,  Canevaro  Case 294,  295 

Note  of  April  27,  1910,  Canevaro  Case 296 

Borja,  Don6  Marla  de,  founder  of  the  Pious  Fund,  Pious  Fund  Case 39 

BostrSm,  E.  O.,  Swedish  member.  Joint  Norwegian  and  Swedish  State  Council  to 

consider  protocol  of  March  15,  1904,  Grisbadarna  Case 136 

Boundary  arbitrations 

Grisbadarna  Case  121 

Island  of  Timor  Case  345 

Boundary  Commission  of  1897,  Maritime.  See  Grisbadarna  Case. 

Bowen,  Herbert  W.,  as  plenipotentiary  of  Venezuela,  signed 

Agreement  for  arbitration,  Venezuelan  Preferential  Case 62,  64 

Claims  conventions  of  1903,  Venezuelan  Preferential  Case 65,  67,68,70,  73,  74,  76 

Statement  of  January  23,  1903,  Venezuelan  Preferential  Case note,  61 

Brussels,  General  Act  of  July  2,  1890,  for  the  suppression  of  African  slave  trade, 

extract,  Muscat  Dhows  Case  104 

Bryce,  James,  signed 

Agreement  for  arbitration.  North  Atlantic  Coast  Fisheries  Case 155 

British  note  of 

January  27,  1909,  North  Atlantic  Coast  Fisheries  Case 217 

March  4,  1909,  North  Atlantic  Coast  Fisheries  Case 218 


INDEX 


633 


PAGE 

Buchanan,  William  I.,  as  plenipotentiary  of  the  United  States,  signed  agreement  for 

arbitration,  Orinoco  Steamship  Company  Case 235,  239 

Caballero,  Don  Juan,  founder  of  the  Pious  Fund,  Pious  Fund  Case 39 

Cambon,  Jules 

As  plenipotentiary  of  France,  signed 

Agreement  for  arbitration,  Casablanca  Case 119 

Protocol  of  November  10,  1908,  Casablanca  Case 120 

Cambon,  Paul,  signed  for  France 
Agreement  for  arbitration 

Muscat  Dhows  Case  102 

Savarkar  Case  282 

Note  of  October  25,  1910,  Savarkar  Case 283 

Supplementary  agreements  to  the  agreement  for  arbitration,  Muscat  Dhows  Case. ..  108,  109 

“Camouna”  Case.  See  “Tavignano,”  “Camouna”  and  “Gaulois"  Cases. 

Campinchi,  C.,  secretary  to  the  agent  of  Turkey  before  the  tribunal,  Russian  In- 
demnity Case  299 

Canevaro  Case  (Italy  vs.  Peru) 

Agreement  for  arbitration,  April  25,  1910 

English  translation  294 

Italian  text  528 

Spanish  text  528 

Supplementary  notes  of  April  27,  1910 

English  translation  296 

Spanish  text  530 

Arbitrators 

Alvarez  Calderon,  Manuel,  Peruvian  appointee 284,  286 

Fusinato,  Guido,  Italian  appointee 284,  286 

Renault,  Louis,  president  of  the  tribunal 284,286,294 

Award  of  the  tribunal.  May  3,  1912 

English  translation  285 

Final  conclusions  294 

French  text  522 

Claimants 

Canevaro  Brothers  284,  286,  290,  294 

Nationality  of  284,  286,290 

Counsel  before  the  tribunal 

Mesones,  Manuel  Maria,  for  Peru 286 

Scialoja,  Vittorio,  for  Italy 286 

Decree  of  Dictator  Pierola  of  December  12,  1880 287 

Firm  of  Jose  Canevaro  and  Sons 

Legal  status  of  287 

Nationality  of  287,  290,  292 

Italian  laws  involved  287 

Origin  of  claim .' 287,288 

Peruvian  laws  involved  285,  286,  288,  289,  291 

Questions  before  the  tribunal 285,  295 

Secretary  general  of  the  tribunal 294 

Syllabus  284 

Tribunal 

Competence  295 

Formation  296 

Meeting  286 

Procedure  295 

Sessions  284 


“Canope,”  The.  See  “Tavignano,"  “Camonna”  and  “Ganlois”  Cases. 
Capltnlations.  See  Muscat  Dhows  Case. 


634 


INDEX 


PAGE 

"CarttaaKe”  Case  (France  ts.  Italy) 

Agents  before  the  tribunal 

Fromageot,  Henri,  for  France 331 

Ricci-Busatti,  Arturo,  for  Italy 331 

Agordat,  seizure  of  the  Carthage  by  the 333 

Agreement  for  arbitration,  March  6,  1912 

English  translation  336 

French  text  561 

Supplementary  agreement  of  April  4,  1912 

English  translation  340 

French  text  S63 

Arbitrators 

Fusinato,  Guido  329,  330,  340 

Hammarskjdid,  Knut  Hjalmar  Leonard,  president  of  the  tribunal.  .329,  330,  331,  336,  340 

Kriege,  J 329,  331,340 

Renault,  Louis  329,  331,340 

Taube,  Baron  Michel  de  329,  331,  340 

Award  of  the  tribunal.  May  6,  1913 

English  translation  330 

Final  conclusions  336 

French  text  556 

Carthage,  seizure  and  detention  of  the 330,  332-334 

Claimants 

Compagnie  Generate  Transatlantique,  owner  of  the  Carthage 333 

Duvall,  owner  of  aeroplane 334 

French  citizens  332,335 

Contentions 


French  331 

Italian  332 

Continuous  voyage,  doctrine  of 334 

Contraband  of  war  333,  334 

Counsel  before  the  tribunal 

Anzilotti,  Dionisio,  for  Italy 331 

Hesse,  Andr6,  for  France 331 

Declaration  of  London  of  1909,  Article  47  invoked 339 

Flag  of  France,  offense  to 332,  335 

Indemnity  for  damages  332,  335,  336 

International  law  violated 332,  335,  336 

Joint  note  of  January  26,  1912 

English  translation  339 

French  text  562 

Origin  of  dispute  329 

Questions  before  the  tribunal  330,  337 

Secretaries  of  the  tribunal 

Rdell,  Jonkheer  W 336 

Verduynen,  Michiels  van  336 

Syllabus  329 

Tribunal 

Competence  337,  338 

Composition  330,331,  337 

Expenses  338,  340 

Language  338 

Meeting  331,  338 

Procedure  337 

Sessions  329 

Visit  and  search,  right  of 333 


Casablanca  Case  (France  vs.  Germany) 

Agents  before  the  tribunal 

Lentze,  Albrecht,  for  Germany 112 

Weiss,  Andre,  for  France  112 


INDEX 


635 


PAGE 

Agreement  for  arbitration,  November  24,  1908 

English  translation  117 

French  text  484 

Arbitrators 

Fry,  Sir  Edward,  French  appointee 110,111 

Fusinato,  Guido,  German  appointee 110,  111 

Hammarskjold,  Knut  Hjalmar  Leonard,  umpire 110,112,117 

Kriege,  J.,  German  appointee 110,112 

Renault,  Louis,  French  appointee 110,111 

Award  of  the  tribunal.  May  22,  1909 

English  translation  Ill 

Final  conclusions  116 

French  text  479 

Conclusions 

French  112 

German  113 

Deserters  from  the  French  Foreign  Legion  at  Casablanca 

Arrest  of  110,113 

Nationality  of  110,113 

Protection  by  the  German  Consulate 112 

Safe  conduct  for 110,115,117 

Extraterritorial  jurisdiction  in  Morocco 110,113-115 

Military  occupation  of  Casablanca 110,  112 

Origin  of  dispute  110,111 

Questions  before  the  tribunal 111,118 

Regrets 

Proces-verbal  of  May  29,  1909 

English  translation  120 

Freneh  text  485 

Protocol  of  November  10,  1908 

English  translation  119 

French  text  485 

Secretary  general  of  the  tribunal,  Michiels  van  Verduynen 117 

Syllabus  110 

Tribunal 

Competence  119 

Composition  118 

Expenses  118 

Language  119 

Meeting  112,118 

Procedure  118 

Sessions  110 

Charts.  See  Maps  and  charts. 

Claimants 

Alemany,  Joseph  S.,  Archbishop  of  San  Francisco,  Pious  Fund  Case 7,48 

Amat,  Thaddeus,  Bishop  of  Monterey,  Pious  Fund  Case 7,48,53 

Canevaro  Brothers,  Canevaro  Case  284,2.86,290,294 

Compagnie  de  Navigation  Mixte,  Manouba  Case 347 

Compagnie  Generale  Transatlantique,  Carthage  Case 333 

Creditor  Powers  of  Venezuela,  Venezuelan  Preferential  Case 55,  56 

Duvall,  Carthage  Case  334 

French  citizens 

Carthage  Case  3.^2,335 

Manouba  Case  342,345,  351 

Tavignano,  Camouna  and  Gaulois  Cases 413 

Orinoco  Steamship  Company,  Orinoco  Steamship  Company  Case 227,  236 

Russian  citizens,  Russian  Indemnity  Case 297.300,303,304 


636 


INDEX 


PAGE 

Claims  arbitrations 

Canevaro  Case  284 

Orinoco  Steamship  Company  Case  226 

Pious  Fund  Case  1 

Russian  Indemnity  Case  297 

Venezuelan  Preferential  Case 55 

Claims  commissions 

British  and  Venezuelan  Commission  of  1903,  Venezuelan  Preferential  Case 68 

German  and  Venezuelan  Commission  of  1903,  Venezuelan  Preferential  Case 66 

Italian  and  Venezuelan  Commission  of  1903,  Venezuelan  Preferential  Case 71,72 

United  States  and  Mexican  Claims  Commission  of  1868,  Pious  Fund  Case 13 

United  States  and  Venezuelan  Claims  Commission  of  1866,  Orinoco  Steamship  Com- 
pany Case  236 

United  States  and  Venezuelan  Claims  Commission  of  1903 

Orinoco  Steamship  Company  Case  (see  Venezuelan  Preferential  Case) 230 

Venezuelan  Preferential  Case  74, 75 

CInnet,  £donard,  agent  for  Turkey  before  the  tribunal,  Russian  Indemnity  Case 299 

Commissleners 

Grisbadarna  Case,  maritime  boundary  commission  of  1897 

Oldberg,  £.,  Swedish  appointee 137 

Olsen,  Hroar,  Norwegian  appointee 137 

Rieck,  A.,  Norwegian  appointee  137 

Westring,  H.  G.,  Swedish  appointee 137 

North  Sea  or  Dogger  Bank  Case,  Hague  commission  of  inquiry 

Beaumont,  Admiral  Lewis  410 

Davis,  Admiral  Charles  Henry 410 

Doubassoff,  Admiral  410 

Fournier,  Admiral  410 

Spaum,  Admiral  410 

Orinoco  Steamship  Company  Case,  claims  commission  of  1903 

Bainbridge,  William  E 240 

Barge,  Charles  Augustinus  Henri,  umpire 227-230,234,  236,255 

Grisanti,  Carlos  F 243 

Pious  Fund  Case,  claims  commission  of  1868 

Thornton,  Sir  Edward,  umpire 1,2,4,6,48,53 

Wadsworth,  William  Henry  17 

Zamacona,  Manuel  Maria  de 22 

Tavignano,  Camouna  and  Gaulois  Cases,  Hague  commission  of  inquiry 

Segrave,  Captain  James 415 

Sombron,  Captain  415 

Zerbi,  Captain  Guiseppe  Genoese  415 

Tabular  statement  of ^^3 

Commisalons.  See  Boundary  commlaaiona;  Clalnia  commUaloBa;  Fishery  com- 
mission; Hague  cammlsslons  of  Inquiry. 

“Compagnie  de  Navigation  MIxte,"  claimant,  Manouba  Case  347 

"Compagnie  G6n<rale  Transatlantlque,"  claimant,  Carthage  Case  333 

“Compromls.”  See  Agreements  for  arbitration. 

“Continuous  voyage”  doctrine,  Carthage  Case  334 


Contraband  of  war,  Carthage  Case 


333,  334 


INDEX 


637 


PAGE 

ConventioBg,  protocols,  treaties,  etc.  See  also  Aereements  for  arbitration; 

Agreements  for  Inquiry. 

1844,  November  17,  France-Iman  of  Muscat.  Treaty  of  friendship  and  commerce, 
extract,  Muscat  Dhows  Case 

English  translation  103 

French  text  473 

1859,  April  20,  Netherlands-Portugal.  Treaty  relative  to  boundary  possessions. 

Island  of  Timor  Case 

English  translation  390 

French  text  599 

1862,  March  10,  France-Great  Britain.  Declaration  respecting  independence  of 
Sultans  of  Muscat  and  Zanzibar,  Muscat  Dhows  Case 

English  translation  103 

English  text  103 

1868,  July  4,  Mexico-United  States.  Claims  convention.  Pious  Fund  Case 

English  text  12 

Spanish  text  437 

1890,  July  2,  General  Act  of  Brussels  for  the  suppression  of  African  slave  trade, 
extract,  Muscat  Dhows  Case 

English  translation  104 

French  text  474 

1893,  June  10,  Netherlands-Portugal.  Convention  of  commerce,  navigation,  boun- 
daries, etc..  Island  of  Timor  Case 

English  translation  393 

French  text  601 

1893,  July  1,  Netherlands-Portugal.  Declaration  regarding  cession  of  territory. 

Island  of  Timor  Case 

English  translation  395 

French  text  603 

1894,  July  16,  Great  Britain-Japan.  Treaty  of  commerce  and  navigation,  extract, 

Japanese  House  Tax  Case 89 

1896,  April  4,  Germany-Japan.  Treaty  of  commerce  and  navigation,  extract,  Japanese 
House  Tax  Case 

English  translation  91 

German  text  464 

1896,  August  4,  France-Japan.  Treaty  of  commerce  and  navigation,  extract,  Japanese 
House  Tax  Case 

English  translation  92 

French  text  465 

1899,  July  29.  Hague  Convention  for  the  pacific  settlement  of  international  disputes 

Adhesions  cii 

English  translation  xxxiii 

French  text  xxxii 

Ratifications  cii 

Reservations  ciii 

1902,  May  22,  Mexico-United  States.  Protocol  of  arbitration.  Pious  Fund  Case 

English  text  7 

Spanish  text  : 432 

1902,  August  28,  France-Japan.  Protocol  of  arbitration,  Japanese  House  Tax 

Case  note  1,  85 

French  text  461 

1902,  August  28,  Germany-Japan.  Protocol  of  arbitration,  Japanese  House  Tax 

Case  note  1,  85 

German  text  457 

1902,  August  28,  Great  Britain-Japan.  Protocol  of  arbitration,  Japanese  House 

Tax  Case  85 

1903,  February  13,  Gerraany-Venezuela.  Claims  convention,  Venezuelan  Preferential 
Case 

English  text  65 

German  text  447 

1903,  February  13,  Great  Britain-Venezuela.  Claims  convention,  Venezuelan  Prefer- 
ential Case  67 


638 


INDEX 


FAGS 

1903,  February  13,  Italy-Venezuela.  Claims  convention,  Venezuelan  Preferential  Case  70 
1903,  February  17,  United  States-Venezuela.  Qaims  convention,  Venezuelan  Prefer- 
ential Case 

English  text  74 

Spanish  text  449 

1903,  February  26,  Mexico-Venezuela.  Claims  convention,  Venezuelan  Preferential 

Case  note,  74 

1903,  February  27,  France-Venezuela.  Claims  convention,  Venezuelan  Preferential 

Case  note,  74 

1903,  February  28,  Netherlands-Venezuela.  Claims  convention,  Venezuelan  Prefer- 
ential Case  note,  74 

1903,  March  7,  Belgium- Venezuela.  Claims  convention,  Venezuelan  Preferential 

Case  note,  74 

1903,  March  10,  Sweden  and  Norway-Venezuela.  Claims  convention,  Venezuelan 

Preferential  Case  note,  74 

1903,  April  2,  Spain-Venezuela.  Claims  convention,  Venezuelan  Preferential 

Case  note,  74 

1903,  May  7,  Germany- Venezuela.  Protocol  of  arbitration,  Venezuelan  Preferential 
Case 

Adhering  Powers  64 

English  text  62 

German  text  445 

1903,  May  7,  Great  Britain-Venezuela.  Protocol  of  arbitration,  Venezuelan  Prefer- 
ential Case  note  1,  62 

1903,  May  7,  Italy-Venezuela.  Protocol  of  arbitration,  Venezuelan  Preferential 

Case  note  1,  62 

1904,  March  15,  Norway-Sweden.  Protocol  concerning  Grisbadarna  boundary 

English  translation  136 

Swedish  text  SOO 

1904,  October  1,  Netherlands- Portugal.  Convention  for  the  settling  of  the  boundary. 

Island  of  Timor  Case 

English  translation  396 

French  text  604 

1904,  October  13,  France-Great  Britain.  Agreement  for  arbitration,  Muscat  Dhows 
Case 

English  text  101 

French  text  471 

1904,  November  12/25,  Great  Britain-Russia.  Declaration  (agreement)  for  inquiry. 

North  Sea  or  Dogger  Bank  Case 

English  translation  410 

French  text  614 

1904,  November  12/25,  Great  Britain-Russia.  Supplementary  protocol  to  declaration 
(agreement)  for  inquiry.  North  Sea  or  Dogger  Bank  Case 

English  translation  412 

French  text  615 

1905,  January  13,  France-Great  Britain.  Supplementary  protocol  to  agreement  for 
arbitration,  Muscat  Dhows  Case 

English  text  108 

French  text  477 

1905,  May  19,  France-Great  Britain.  Supplementary  protocol  to  agreement  for 
arbitration,  Muscat  Dhows  Case 

English  text  109 

French  text  477 

1906,  October  6/8,  Great  Britain-United  States.  Modus  vivendi,  North  Atlantic 

Coast  Fisheries  Case  208 

1907,  September  4/6,  Great  Britain-United  States.  Modus  vivendi.  North  Atlantic 

Coast  Fisheries  Case  212 

1907,  October  18.  Hague  Convention  for  the  pacific  settlement  of  international 
disputes 

Adhesion  cv 

English  translation  xxxiii 


INDEX 


639 


PAGE 

French  text  xxxii 

Ratifications  civ 

Reservations  ev 

Signatures  cv 

1908,  March  14,  Norway-Sweden.  Agreement  for  arbitration,  Grisbadarna  Case 

English  translation  133 

Norwegian  text  496 

Swedish  text  496 

1908,  July  15/23,  Great  Britain-United  States.  Modus  vivendi,  North  Atlantic 

Coast  Fisheries  Case  214 

1908,  November  10,  France-Germany.  Protocol  containing  formula  of  regrets,  Casa- 
blanca Case 

English  translation  119 

French  text  485 

1908,  November  24,  France-Germany.  Compromis  of  arbitration,  Casablanca  Case 

English  translation  117 

French  text  484 

1909,  January  27,  Great  Britain-United  States.  Agreement  for  arbitration.  North 

Atlantic  Coast  Fisheries  Case 147 

1909,  January  27/March  4,  Great  Britain-United  States.  Correspondence  supple- 
mentary to  agreement  for  arbitration 215 

1909,  February  13,  United  States-Venezuela.  Agreement  for  arbitration,  Orinoco 
Steamship  Company  Case 

English  text  235 

Spanish  text  508 

1909,  May  29,  France-Germany.  Proces-verbal  of  regrets,  Casablanca  Case 

English  translation  120 

French  text  485 

1909,  July  22/September  8,  Great  Britain-United  States.  Modus  vivendi.  North 

Atlantic  Coast  Fisheries  Case 220 

1910,  April  25,  Italy-Peru.  Protocol  of  arbitration,  Canevaro  Case 

English  translation  294 

Italian  text  528 

Spanish  text  528 

1910,  April  27,  Italy-Peru.  Notes  concerning  the  formation  of  the  arbitral  tribunal, 
Canevaro  Case 

English  translation  296 

Spanish  text  530 

1910,  July  22/August  4,  Russia-Turkey.  Compromis  of  arbitration,  Russian  Indem- 
nity Case 

English  translation  324 

French  text  551 

1910,  October  25,  France-Great  Britain.  Agreement  for  arbitration,  Savarkar  Case 

English  text  280 

French  text  519 

1910,  October  25,  France-Great  Britain.  Supplementary  notes  to  the  agreement  for 
arbitration,  Savarkar  Case 

English  note  282 

French  note 

English  translation  282 

French  text  520 

1912,  January  26,  France-Italy.  Joint  note  concerning  settlement  of  the  Carthage 
and  Manouba  cases 

English  translation  339 

French  text  562 

1912,  March  6,  France-Italy.  Compromis  of  arbitration,  Carthage  Case 

English  translation  336 

French  text  561 

1912,  March  6,  France-Italy.  Compromis  of  arbitration,  Manouba  Case 

English  translation  351 

French  text  571 


640 


INDEX 


PAGE 

1912,  April  4,  France-Italy.  Supplementary  agreement^  to  the  compromis  of  arbi- 
tration, Carthage  and  Manouba  Cases 

English  translation  340 

French  text  563 

1912,  April  15,  France-Italy.  Preliminary  agreement  for  inquiry  and  arbitration, 
Tavignano,  Camouna  and  Gaulois  Cases 

English  translation  419 

French  text  621 

1912,  May  20,  France-Italy.  Convention  of  inquiry,  Tavignano,  Camouna,  and 
Gaulois  Cases 

English  translation  417 

French  text  617 

Italian  text  617 

1912,  July  20,  Great  Britain-United  States.  Agreement  adopting  recommendations 

in  award.  North  Atlantic  Coast  Fisheries  Case 221 

1912,  November  8,  France-Italy.  Compromis  of  arbitration,  Tavignano,  Camouna 
and  Gaulois  Cases 

English  translation  419 

French  text  621 

1913,  May  2,  France-Italy.  Agreement  settling  the  Tavignano,  Camouna,  and 

Gaulois  Cases 

English  translation  421 

French  text  623 

1913,  April  3,  Netherlands-Portugal.  Compromis  of  arbitration.  Island  of  Timor 
Case 

English  translation  387 

French  text  596 

Counsel  before  the  tribunals 
Canevaro  Case 

Mesones,  Manuel  Maria,  for  Peru 286 

Scialoja,  Vittorio,  for  Italy 286 

Carthage  Case 

Anzilotti,  Dionisio,  for  Italy 331 

Hesse,  Andr6,  for  France  331 

Manouba  Case 

Anzilotti,  Dionisio,  for  Italy 344 

Hesse,  Andre,  for  France 344 

Russian  Indemnity  Case 

Hesse,  Andr<,  for  Turkey  299 

Roguin,  Ernest,  for  Turkey 299 

Youssouf,  K6mal  Bey,  for  Turkey 299 

Cowley,  I,ord.  as  plenipotentiary  of  Great  Britain,  signed  declaration  of  March  10, 

1862,  between  France  and  Great  Britain  respecting  the  independence  of  the 
Sultans  of  Muscat,  Muscat  Dhows  Case 103 

Crowe,  Eyre,  agent  for  Great  Britain  before  the  tribunal,  Savarkar  Case 277 

Customs  receipts  of  La  Gnaira  and  Puerto  Cabello.  See  Yenezuelan  Preferential 
Case. 

Davis,  Admiral  Charles  Henry,  commissioner.  North  Sea  or  Dogger  Bank  Case 410 

Declaration  of  London  of  1909.  Article  47  invoked  in  the  Carthage  Case 339 

Doclaratlons.  See  Conventions,  protocols,  treaties,  etc. 

Decrees 

Pieroio  decree  of  December  12,  1880,  Canevaro  Case 287 


INDEX 


641 


rACi 

Vcnezuetan  decrees,  Orinoco  Steamship  Company  Case 

1893,  July  1,  Article  1 2S3 

1900,  October  S,  Articles  1,  2 254,261 

Desart,  l<ard.  arbitrator,  Savarkar  Case  275,  276 

Deserters  from  the  French  Forelsn  Liegion  at  Casablanca.  See  Casablanca  Case. 

Dhows.  See  Mnsoat  Dhows  Case. 

Dissenting  opinions 

Japanese  House  Tax  Case,  opinion  of  Itchiro  Motono 84 

North  Atlantic  Coast  Fisheries  Case,  opinion  of  Luis  Maria  Drago 193,195 

DoKKer  Bank  Case.  See  North  Sea  or  Dogger  Bank  Case. 

Donbassoff,  Admiral,  commissioner.  North  Sea  or  Dogger  Bank  Case 410 

Drago,  Lnis  Maria,  arbitrator.  North  Atlantic  Coast  Fisheries  Case 142,  155,  193 

Dissenting  opinion  195 

Dnbail,  G.,  as  plenipotentiary  of  France,  signed  agreement  for  arbitration,  Japanese 

House  Tax  Case  87 

Davall,  claimant,  Carthage  Case  334 

Extraterritorial  jurisdiction.  See  Casablanca  Case;  Japanese  House  Tax  Case. 

Ferreira,  Antonio  Marla  Bartholomeu,  as  plenipotentiary  of  Portugal,  signed  agree- 
ment for  arbitration.  Island  of  Timor  Case 389 

Fishery  arbitration 

North  Atlantic  Coast  Fisheries  Case 141 

Fishery  Commission,  Permanent  Mixed  British-American.  See  North  Atlantic 
Coast  Fisheries  Case. 

Fishing  fleet  from  Hull.  See  North  Sea  or  Dogger  Bank  Case. 

Fitzpatrick,  Sir  Charles,  arbitrator.  North  Atlantic  Coast  Fisheries  Case 142,  155,  193 

Flag,  ofiTense  to.  See  “Carthage”  Case;  “Manouba”  Case. 

Flag  of  France,  right  of  Muscat  Dhows  to  fly 93-95,  101 

Fontes  Pereira  de  Mello,  A.  M.  de,  as  plenipotentiary  of  Portugal,  signed  agree- 
ment of  April  20,  1859,  Island  of  Timor  Case 393 

Foreign  Legion  of  France,  deserters  from.  See  Casablanca  Case. 

Foreign  settlements  in  Japan.  See  Japanese  House  Tax  Case. 

Forres  de  Bada,  Marchioness  de,  founder  of  the  Pious  Fund,  Pious  Fund  Case...  39 

Fournier,  Admiral,  commissioner.  North  Sea  or  Dogger  Bank  Case 410 

France 

Arbitrations 

Carthage  Case  (France  vs.  Italy) 229 

Casablanca  Case  (France  vs.  Germany) 110 

Japanese  House  Tax  Case  (France,  Germany  and  Great  Britain  vs.  Japan) 77 

Manouba  Case  (France  vs.  Italy)  341 

Muscat  Dhows  Case  (France  vs.  Great  Britain) 93 

Savarkar  Case  (France  vs.  Great  Britain) 275 


642 


INDEX 


FACE 

Cases  before  Hague  commission  of  inquiry:  Tavi%nano,  Camouna  and  Gauleis  Cases 

(France  vs.  Italy)  413 

Civil  code.  Article  1690,  Orinoco  Steamship  Company  Case 250 

Fromageot,  Henri,  agent  before  the  tribunal 

Carthage  Cass,  for  France  331 

Manouba  Case,  for  France 344 

Russian  Indemnity  Case,  for  Russia 299 

Fry,  Sir  Edward,  arbitrator 

Casablanca  Case  110,  111 

Pious  Fund  Case  2,  3,  7 

Fuller,  Melville  W.,  arbitrator,  Muscat  Dhows  Case 93,  95,  101 

“Fnlmine,”  The.  See  “Tavignano,"  “Camouna”  and  “Gaulols”  Cases. 

Fusinato,  Guido 
Arbitrator 

Canevaro  Case  284,286 

Carthage  Case  329,  330,  340 

Casablanca  Case  110,111 

Manouba  Case  342,  343 

As  plenipotentiary  of  Italy,  signed 
Agreement  for  arbitration 

Carthage  Case  338 

Manouba  Case  353 

Tavignano,  Camouna  and  Gaulois  Cases 421 

Definitive  agreement  of  May  2,  1913,  Tavignano,  Camouna  and  Gaulois  Cases....  421 

Ganteaume,  Edgar  Peter,  attorney  for  Ellis  Grell  to  sign  concessions  contract, 

Orinoco  Steamship  Company  Case 258,  260 

“Gaulois”  Case.  See  “Tavignano,”  “Camouna”  and  “Gaulols”  Cases. 

Geneva  Convention  of  1906.  Article  9 invoked  in  the  Manouba  Case 341,  345 

Germany 

Arbitrations 

Casablanca  Case  (Germany  rr.  France) 110 

Japanese  House  Tax  Case  (Germany,  France  and  Great  Dritain  vs.  Japan) 77 

Venetuelan  Preferential  Case  (Germany,  Great  Britain  and  Italy  vs.  Venezuela 

et  al.)  55 

Gincomette,  representative  of  6rm  of  Jose  Canevaro  and  Sons,  Canevaro  Case 288 

Gluliano,  di  San,  as  plenipotentiary  of  Italy,  signed  agreements  for  inquiry,  Tavig- 
nano, Camouna  and  Gaulois  Cases 419 

Gonzdiex  GuinAn,  Francisco,  as  plenipotentiary  of  Venezuela,  signed  agreement  for 

arbitration,  Orinoco  Steamship  Company  Case 235,236,239 

Gorst,  E.,  signed,  for  Great  Britain,  modus  vivendi  of  October  6/8,  1906,  North 

Atlantic  Coast  Fisheries  Case 209 

Gram,  Gregers 

Arbitrator,  Savarkar  Case 275,  276 

Umpire,  Japanese  House  Tax  Case 77,  79,84 

Gray,  George,  arbitrator.  North  .Atlantic  Coast  Fisheries  Case 142,  155,  193 


INDEX 


643 


PAGE 

Great  Britain 
Arbitrations 

Japanese  House  Tax  Case  (Great  Britain,  France  and  Germany  vs.  Japan) 77 

Muscat  Dhows  Case  (Great  Britain  vs.  France) 93 

North  Atlantic  Coast  Fisheries  Case  (Great  Britain  vs.  United  States) 141 

Savarkar  Case  (Great  Britain  vs.  France) 275 

Venezuelan  Preferential  Case  (Great  Britain,  Germany  and  Italy  vs.  Venezuela 

et  al.)  55 

Case  before  Hague  commission  of  inquiry:  North  Sea  or  Dogger  Bank  Case  (Great 

Britain  vs.  Russia)  403 

Grell  concession.  See  Orinoco  Steamship  Company  Case. 

Grey,  Sir  Edward,  signed,  for  Great  Britain 

Agreement  for  arbitration,  Savarkar  Case 282 

Modus  vivendi  of 

1907,  September  4/6,  North  Atlantic  Coast  Fisheries  Case 213 

1908,  July  15/23,  North  Atlantic  Coast  Fisheries  Case 214 

1909,  July  22/September  8,  North  Atlantic  Coast  Fisheries  Case 220 

Note  of  October  25,  1910,  Savarkar  Case 282 

Grisanti,  Carlos  F.,  Venezuelan  commissioner,  original  Orinoco  Steamship  Company 

Case  before  claims  commission  of  1903,  opinion 243 

Grlsbadarna  Case  (Norway  vs.  Sweden) 

Agents  before  the  tribunal 

Johanssen,  Kristen,  for  Norway 122 

Montan,  C.  O.,  for  Sweden 122 

Agreement  for  arbitration,  March  14,  1908 

English  translation  133 

Norwegian  text  496 

Swedish  text  496 

Arbitrators 

Beichmann,  F.  V.  N.,  Norwegian  appointee 121,122 

Haramarskjbld,  Knut  Hjalmar  Leonard,  Swedish  appointee 121,122 

Loeff,  J.  A.,  president  of  the  tribunal 121,122,  133 

Award  of  the  tribunal,  October  23,  1909 

English  translation  122 

Final  conclusions  132 

French  text  487 

Boundary  commission  of  1897,  maritime 
Commissioners 

Oldberg,  E.,  Swedish  appointee 137 

Olsen,  Hroar,  Norwegian  appointee 137 

Rieck,  A.,  Norwegian  appointee 137 

Westring,  H.  G.,  Swedish  appointee 137 

Disagreed  138 

Norwegian  view-point  . . .*. 138 

Swedish  view-point  138 

Charts  opposite  140 

Conclusions 

Norwegian  123 

Swedish  123 

Fisheries  in  the  shoals  of  Grisbadarna 130,  134 

Light-boat  installation  and  maintenance  by  Sweden 130,131,135 

Origin  of  dispute  121 

Questions  before  the  tribunal  122,  123,  133 

Roskilde,  peace  of,  1658,  maritime  territory  divided  by 127,136 

Royal  Resolution  of  March  26,  1904,  with  accompanying  protocol  of  March  IS, 

1904,  concerning  the  maritime  boundary  between  Norway  and  Sweden 

English  translation  136 

Swedish  text  500 


644 


INDEX 


FAGI 

Secretaries  of  the  tribunal 

Roell,  Jonkheer  W 133 

Verduynen,  Michiels  van 133 

Syllabus  121 

Tribunal 

Competence  134 

Composition  133 

Expenses  13S 

Language  13S 

Meeting  13S 

Procedure  135 

Sessions  121 

Hagerup,  G.  F.,  Norwegian  member,  Joint  Norwegian  and  Swedish  State  Council  to 

consider  protocol  of  March  15,  1904,  Grisbadarna  Case 136 

Hague  commissions  of  Inquiry,  cases  before 

North  Sea  or  Dogger  Bank  Case 403 

Tavignano,  Camouna  and  Gaulois  Cases 413 

Hague  Convention  of  1907  relative  to  certain  restrictions  on  the  right  of  cap- 
ture in  maritime  war.  Article  2 invoked  in  the  Manouba  Case 341,  345 

Hague  Conventions  for  the  pacific  settlement  of  International  disputes 
1899  Convention 

Adhesions  cii 

English  translation  xxxiii 

French  text  xxxii 

Ratifications  cii 

Reservations  ciii 

1907  Convention 

Adhesion  cv 

English  translation  xxxiii 

French  text  xxxii 

Ratifications  civ 

Reservations  cv 

Signatures  cv 

llammarskjbid,  Knut  lljaimar  Leonard 

Arbitrator,  Grisbadarna  Case 121,122 

President  of  the  tribunal 

Carthage  Case  329,  330,  331,  336,  340 

Manouba  Case  342,  343,  351 

Umpire,  Casablanca  Case  110,112,117 

HardInge,  Charles,  as  plenipotentiary  of  Great  Britain,  signed 

Agreement  for  inquiry.  North  Sea  or  Dogger  Bank  Case 412 

Protocol  of  November  12/25,  1904,  North  Sea  or  Dogger  Bank  Case 412 

Hangc,  H.  M.,  Norwegian  member.  Joint  Norwegian  and  Swedish  State  Council  to 

consider  protocol  of  March  15,  1904,  Grisbadarna  Case 136 

Hay,  John,  as  plenipotentiary  of  United  States,  signed 

Agreement  for  arbitration.  Pious  Fund  Case 8,  12 

Claims  convention  of  February  17,  1903,  Venezuelan  Preferential  Case 74,  76 

Heeckeren,  Carol  van.  as  plenipotentiary  of  the  Netherlands,  signed 

Agreement  of  June  10,  1893,  Island  of  Timor  Case 395 

Declaration  of  July  1,  1893,  Island  of  Timor  Case 396 

Helnneman,  Heinrich,  deserter  from  French  Foreign  Legion  at  Casablanca,  Casa- 
blanca Case  113 


INDEX 


645 


FACE 

Heldewier,  M.,  as  plenipotentiary  of  the  Netherlands,  signed  agreement  of  April  20, 


1859,  Island  of  Timor  Case 393 

Herante  Abro  Bey,  arbitrator,  Russian  Indemnity  Case 297,299 

Herbert,  Sir  Michael  H.,  as  plenipotentiary  of  Great  Britain,  signed  claims  conven- 
tion of  February  13,  1903,  Venezuelan  Preferential  Case 67,  70 

Hesse,  Andr6,  council  before  the  tribunal 

Carthage  Case,  for  France 331 

Manouba  Case,  for  France 344 

Russian  Indemnity  Case,  for  Turkey 299 

Hoek,  P.  P.  C.,  appointed  by  the  tribunal  in  North  Atlantic  Coast  Fisheries  Case  as 

member  of  the  Permanent  Mixed  Fishery  Commission 173 


House  tax.  See  Japanese  House  Tax  Case. 

Hull  incident.  See  North  Sea  or  Dogger  Bank  Case. 


Ibsen,  S.,  Norwegian  member.  Joint  Norwegian  and  Swedish  State  Council  to  consider 

protocol  of  March  15,  1904,  Grisbadarna  Case 136 

Idenburg,  A.  W.  F.,  as  plenipotentiary  of  the  Netherlands,  signed  agreement  of  Oc- 
tober 1,  1904,  Island  of  Timor  Case 400 


Indemnities.  See  “Carthage”  Case;  “Manouba”  Case;  Russian  Indemnity  Case; 
“Tavignano,”  “Camouna”  and  “Gaulois”  Cases. 

Indemnity  arbitration 

Russian  Indemnity  Case  297 

Inquiry,  agreements  for.  See  Agreements  for  inquiry. 

Innes,  Alfred  Mitchell,  as  plenipotentiary  of  Great  Britain,  signed  agreement  of  July 


20,  1912,  North  Atlantic  Coast  Fisheries  Case 221,  225 

International  law 

Bays,  creeks,  harbors,  etc.,  limits  of.  North  Atlantic  Coast  Fisheries  Case...  145,  181  et  seq. 

Blockade,  Venezuelan  Preferential  Case 55 

Capitulations,  Muscat  Dhows  Case 93,99 

Co-dominium,  North  Atlantic  Coast  Fisheries  Case 167 

Continuous  voyage,  Carthage  Case 334 

Contraband  of  war,  Carthage  Case 333,  334 

Declaration  of  London,  Carthage  Case 339 

Extraterritorial  jurisdiction 

Casablanca  Case  110,  113-115 

Japanese  House  Tax  Case 77 

Geneva  Convention  of  1906,  Manouba  Case 341,345 

Hague  Convention  of  1907  relative  to  certain  restrictions  on  the  right  of  capture  in 

maritime  war,  Manouba  Case  341,  345 

International  servitude.  North  Atlantic  Coast  Fisheries  Case 159 

Territorial  jurisdiction  in  regard  to  bays.  North  Atlantic  Coast  Fisheries  Case 185 

Three-mile  rule.  North  Atlantic  Coast  Fisheries  Case et  seq. 

Visit  and  search 

Carthage  Case  333 

Manouba  Case  346,347 

Island  of  Timor  Case  (Netherlands  vs.  Portugal) 

Agreement  for  arbitration,  .\pril  3,  1913 

English  translation  ' 387 

French  text  596 


646 


INDEX 


PAGE 

Agreements,  other, 

1859,  April  20 

English  translation  390  ' 

French  text  599 

1893,  June  10 

English  translation  393 

French  text  601 

1893,  July  1 

English  translation  395 

French  text  603 

1904,  October  1 

English  translation  396 

French  text  604 

Intent  of  parties  361,366 

Arbitrator,  sole,  Charles  Edouard  Lardy 354 

Appointed  by  the  President  of  the  Swiss  Confederation 387 

Area  of  Island  355 

Arguments 

Netherland  361 

Portuguese  360 

Award,  June  25,  1914 

English  translation  355 

Final  conclusions  385 

French  text  574 

Boundaries 

History  355 

Of  1859  356,362,  379,390 

Of  1899  360,362 

Of  1904  357,380,397 

Boundary  commission  of  1898-99 356  et  seg. 

Conference  of  June  23/July  3,  1902 367,  370 

Enclaves  to  be  abolished 354,356,  380,393 

Expenses  385 

Inhabitants  of  Island  355 

Language  of  the  arbitrator 388 

Law  applicable  365 

Maps  opposite  386 

Origin  of  dispute  354,  357 

Population  of  Island 355 

Procedure  389 

Questions  before  the  arbitrator  387 

Syllabus  354 


Italy 

Arbitrations 

Canevaro  Case  (Italy  vs.  Peru) 284 

Carthage  Case  (Italy  vs.  France) 229 

Manouba  Case  (Italy  vs.  France) 341 

Venezuelan  Preferential  Case  (Italy,  Germany  and  Great  Britain  vs.  Venezuela 

et  al.)  55 

Cases  before  Hague  commission  of  inquiry:  Tavignano,  Camouna  and  Gaulois  Cases 

(Italy  tis.  France) 413 

Japan 

Arbitration:  Japanese  House  Tax  Case  (Japan  vs.  France,  Germany  and  Great 

Britain)  77 

Japanese  House  Tax  Case  (France,  Germany  and  Great  Britain  vs.  Japan) 

Agreement  for  arbitration,  August  28,  1902,  between 

France  and  Japan,  French  text 461 

Germany  and  Japan,  German  text 457 

Great  Britain  and  Japan,  English  text 85 


INDEX 


647 


PAGE 

Agreements,  other 

1894,  July  16,  agreement  between  Great  Britain  and  Japan,  extract 89 

1896,  April  4,  agreement  between  Germany  and  Japan,  extract 

English  translation  91 

German  text  464 

1896,  August  4,  agreement  between  France  and  Japan,  extract 

English  translation  92 

French  text  465 

Arbitrators 

Gram,  Gregers,  umpire  77,  79,  84 

Motono,  Itchiro,  Japanese  appointee 77,  79,85 

Renault,  Louis,  British,  French  and  German  appointee 77,79,84 

Award  of  the  tribunal 

Dissenting  opinion  of  Itchiro  Motono 84 

English  translation  78 

Final  conclusions  84 

French  text  452 

Claims  (contentions) 

British,  French  and  German 80 

Japanese  80 

Concessions  of  Japan  to  foreigners 77 

Exemption  from  taxation  77,  80-84,  87 

Extraterritorial  jurisdiction  77 

Foreign  settlements  in  Japan 80 

Leases  in  perpetuity  of 

Buildings  81 

Land  77,  80 

Origin  of  dispute  77, 85 

Question  before  the  tribunal 79,  87 

Syllabus  77 

Tribunal 

Composition  87 

Meeting  89 

Procedure  88 

Sessions  77 

Japanese  torpedo  boats.  See  North  Sea  or  Dogger  Bank  Case. 

Jobanssen,  Kristen,  agent  for  Norway  before  the  tribunal,  Grisbadarna  Case 122 


Jurisdiction 

Conflict  of.  See  Casablanca  Case. 

Extraterritorial.  See  Japanese  House  Tax  Case. 

Of  Sultan  of  Muscat.  See  Muscat  Dhows  Case. 

Territorial,  in  regard  to  bays.  See  North  .Atlantic  Coast  Fisheries  Case. 


Just,  Chancellor,  German  Consulate  at  Casablanca,  Casablanca  Case 113 

Kiderlen,  Alfred  von,  as  plenipotentiary  of  Germany,  signed 

Agreement  for  arbitration,  Casablanca  Case 119 

Protocol  of  November  10,  1908,  Casablanca  Case 120 

Kildal,  B.,  Norwegian  member.  Joint  Norwegian  and  Swedish  State  Council  to  con- 
sider protocol  of  March  IS,  1904,  Grisbadarna  Case 136 

Komura,  Jntaro,  as  plenipotentiary  of  Japan,  signed  agreements  for  arbitration, 

Japanese  House  Tax  Case 87,  89 

Kriege,  J.,  arbitrator 

Carthage  Case  329,  331,340 

Casablanca  Case  110,112 

Manouba  Case  342,343 


648 


INDEX 


PAGE 

LaKerheim,  C.  H.  Th.  A.  de,  Swedish  member.  Joint  Norwegian  and  Swedish  State 

Council  to  consider  protocol  of  March  IS,  1904,  Grisbadarna  Case 136 

1a  Guaira  cnstoma  receipts.  See  Venexnelan  Preferential  Case. 

l^ammaseh,  H. 

Arbitrator,  Venezuelan  Preferential  Case 56,57,  61 

President  of  the  tribunal.  North  Atlantic  Coast  Fisheries  Case 142,155,  193 

Umpire 

Muscat  Dhows  Case  93,  95,101 

Orinoco  Steamship  Company  Case 227,  229,234 

lAmsdorir,  Count,  as  plenipotentiary  of  Russia,  signed 

•Agreement  for  inquiry.  North  Sea  or  Dogger  Bank  Case 412 

Protocol  of  November  12/25,  1904,  North  Sea  or  Dogger  Bank  Case 412 

Uansdowne,  Uord,  as  plenipotentiary  of  Great  Britain,  signed 

.Agreement  for  arbitration,  Muscat  Dhows  Case 102 

Supplementary  agreements  to  the  agreement  for  arbitration,  Muscat  Dhows  Case..  108,  109 

l.ardy,  Charles  £donard 

Sole  arbitrator.  Island  of  Timor  Case 354 

Umpire,  Russian  Indemnity  Case 297,  298,  323 

Daw,  international.  See  International  law. 

Leases  in  perpetuity.  See  Japanese  House  Tax  Case. 

Lentze,  .Albrecht,  agent  for  Germany  before  the  tribunal,  Casablanca  Case 112 

LoefT,  J.  A.,  president  of  the  tribunal,  Grisbadarna  Case 121,122,133 

London,  Declaration  of.  See  Declaration  of  London. 

Luyando,  Juan  Maria  de,  founder  of  the  Pious  Fund,  Pious  Fund  Case 39 

L.vnden,  Baron  Melvil  dr.  as  plenipotentiary  of  the  Netherlands,  signed  treaty  of 

October  1,  1904,  Island  of  Timor  Case 400 

MacDonald.  Claude  M..  as  plenipotentiary  of  Great  Britain,  signed  agreement  for 

arbitration,  Japanese  House  Tax  Case 87,  89 

Mahones,  Tunisian.  See  "Tarlgnano,”  “Camouna”  and  “Gaulois”  Cases. 

Mallet,  Louis,  signed  for  Great  Britain,  modus  fivendi  of  July  15/23,  1908,  North 

•Atlantic  Coast  Fisheries  Case 214 

Mandelstam,  .Andr6,  arbitrator,  Russian  Indemnity  Case 297,299 

“Manouba”  Case  (France  vs.  Italy) 

Agents  before  the  tribunal 

Fromageot,  Henri,  for  France 344 

Ricci-Busatti,  Arturo,  for  Italy 344 

Agordat,  seizure  of  the  Manouba  by  the 347,348 

•Agreement  for  arbitration,  March  6,  1912 

English  translation  351 

French  text  571 

Supplementary  agreement  of  .April  4,  1912.  (See  “Carthage”  Case.) 

English  translation  340 

French  text  563 

•Arbitrators 

Fusinato,  Guido  342,  343 

Hammarskjold,  Knut  Hjalmar  Leonard,  president  of  the  tribunal 342,343,351 

Kriege,  J 342,343 

Renault,  Louis  342,  343 

Taube,  Baron  Michel  de 342,  343 


INDEX 


649 


PAGE 

Award  of  the  tribunal.  May  6,  1913 

English  translation  342 

Final  conclusions  350 

French  text  365 

Compagnie  de  Navigation  Mixte,  owner  of  the  Manouba,  claimant 347 

Claims  of 

French  Government  344,345 

Italian  Government  346 

Private  citizens  (French)  342,  345,  351 

Conclusions  (demands) 

French  344,349 

Italian  345,349 

Conventional  engagements,  violations  of 341,  345 

Counsel  before  the  tribunal 

Anzilotti,  Dionisio,  for  Italy  344 

Hesse,  Andre,  for  France  344 

Flag  of  France,  offense  to 341,344,349 

Geneva  Convention  of  1906,  violation  of 341,  345 

Hague  Convention  of  1907  relative  to  certain  restrictions  on  the  right  of  capture 

in  maritime  war,  violation  of 341,  345 

Indemnity  for  damages 341,  344,  345,  351 

Joint  note  of  January  26,  1912.  (See  "Carthage”  Case.) 

English  translation  339 

French  text  562 

Manouba,  seizure  and  detention  of  the 341-353 

Ottoman  passengers  on  board  the  Manouba,  arrest  of 343,  345,  347,348,351,  352 

Questions  before  the  tribunal 343,  352 

Secretaries  of  the  tribunal 

Rdell,  Jonkheer  W 351 

Verduynen,  Michiels  van  351 

Syllabus  341 

Tribunal 

Competence  352,  353 

Composition  343,  352 

Expenses  352 

Language  353 

Meeting  344,  353 

Procedure  352 

Sessions  342 

Visit  and  search,  right  of 346,347 

Maps  and  charts 

Grisbadarna  Case  opposite  140 

Island  of  Timor  Case “ 386 

North  Atlantic  Coast  Fisheries  Case “ 194 

Tavignano,  Camouna  and  Gaulois  Cases “ 416 


Maritime  boundaries.  Sec  Grisbadarna  Case. 
Martens,  F„  arbitrator 


Pious  Fund  Case  2,  3,  7 

Venezuelan  Preferential  Case  56,57,61 

Mathiesen,  C.  P.,  Norwegian  member.  Joint  Norwegian  and  Swedish  State  Council 

to  consider  protocol  of  March  IS,  1904,  Grisbadarna  Case 136 

Matzen,  Henning,  president  of  the  tribunal  and  umpire.  Pious  Fund  Case 2,4,7 

Memoranda 


American  memorandum  of  September  12,  1906,  North  Atlantic  Coast  Fisheries  Case.  209 
British  memorandum  of  September  25,  1906,  North  Atlantic  Coast  Fisheries  Case.  210 


650 


INDEX 


PAGE 

Mesones,  Manuel  Maria,  counsel  for  Peru  before  the  tribunal,  Canevaro  Case 286 

Meyer,  Julius,  deserter  from  the  French  Foreign  Legion  at  Casablanca,  Casablanca 

Case  113 

Mexico 

Arbitrations 

Pious  Fund  Case  (Mexico  vs.  United  States) 1 

Venezuelan  Preferential  Case  (Mexico,  Venezuela  et  al.  vs.  Germany,  Great 

Britain  and  Italy)  55 

Military  occupation  of  Casablanca.  See  Casablanca  Case. 

“Modus  Tlyendi.”  See  Conventions,  protocols,  treaties,  etc. 

Montan,  C.  O.,  agent  for  Sweden  before  the  tribunal,  Grisbadarna  Case 122 

“Morea,”  The.  See  Savarkar  Case. 

Hotono,  Itchiro,  arbitrator,  Japanese  House  Tax  Case 77,79 

Dissenting  opinion  of  84 

Monrawleff,  Nicolas  V.,  president  of  the  tribunal,  Venezuelan  Preferential  Case. . .56,  57,  61 

Mnscat  Dhows  Case  (France  vs.  Great  Britain) 

Agent  to  represent  each  party  before  the  tribunal 102 

Agreement  for  arbitration,  October  13,  1904 

English  text  101 

French  text  471 

Supplementary  protocol  of 
January  13,  1905 

English  text  108 

French  text  477 

May  19,  1905 

English  text  109 

French  text  477 

Agreements,  other 

1844,  November  17,  agreement  between  France  and  the  Iman  of  Muscat 

English  translation  103 

French  text  473 

1862,  March  10,  declaration  between  France  and  Great  Britain  respecting  the  inde- 
pendence of  the  Sultans  of  Muscat 

English  translation  103 

French  text  473 

1890,  July  2,  General  Act  of  Brussels  for  the  suppression  of  the  African  slave 
trade 

English  translation  104 

French  text  474 

Arbitrators 

Fuller,  Melville  W.,  British  appointee 93,  95,  101 

Lammasch,  H.,  umpire  93,95,101 

Savornin  Lehman,  Jonkheer  A.  F.  de,  French  appointee 93,95,101 

Award  of  the  tribunal,  August  8,  1905 

English  official  translation 95 

Final  conclusions  99,  100 

French  text  467 

Capitulations  93,  99 

Flag  of  France,  right  of  Muscat  Dhows  to  fly 93-95,  101 

Jurisdiction  of  the  Sultan  of  Muscat 94 

Origin  of  dispute  93 

Ottoman  laws  involved 97 


INDEX 


651 


PAGE 


Questions  before  the  tribunal 95 

Syllabus  93 

Tribunal 

Composition  101 

Meeting  102 

Procedure  102 

Sessions  93 

Netherlands,  the 
Arbitrations 

Island  of  Timor  Case  (Netherlands  vs.  Portugal) 354 

Venezuelan  Preferential  Case  (Netherlands,  Venezuela  et  al.  vs.  Germany,  Great 

Britain  and  Italy) 55 


North  Atlantic  Coast  Fisheries  Case  (Great  Britain  ts.  United  States) 


Agents  of  the  parties  before  the  tribunal 153,155 

Agreement  for  arbitration,  January  27,  1909 147 

Supplementary  correspondence  of  January  27/March  4,  1909 213 

Agreements,  other 

1818,  October  20,  Article  1 141,147 

1906,  October  6/8,  modus  vivendi  208 

1907,  September  4/6,  modus  vivendi  212 

1908,  July  15/23,  modus  vivendi 214 

1909,  July  22/September  8,  modus  vivendi  220 

1912,  July  20,  agreement  adopting  recommendations  in  the  award 221 

Arbitrators 


Drago,  Luis  Maria  142,  155,193 

Fitzpatrick,  Sir  Charles  142,  155,  193 

Gray,  George  142,155,  193 

Lammasch,  H.,  president  of  the  tribunal 142,155,  193 

Savornin  Lohman,  Jonkheer  A.  F.  de 142,  155,  193 

Award  of  the  tribunal,  September  7,  1910 146 

Dissent  of  Luis  M.  Drago  on  question  5 193,  195 

Final  conclusions  on  Question 

1 172 

2 178 

3 180 

4 181 

5 187 

6 192 

7 193 

Recommendations  to  the  parties 173,174 

Bays,  creeks,  harbors,  etc.,  limits  of 145,181  et  seq. 

Co-dominium  167 

Contentions 


American,  with  regard  to  Question 


1 156,  158,  159,  162,  164,  165,  166,  167,  168 

2 176 

5 181,182,183,185,  186 

6 190 


British,  with  regard  to  Question 

1 156 

2 177 

5 181 

6 190 

Counsel  of  the  parties  before  the  tribunal 153,155 

Dissenting  opinion  of  Luis  M.  Drago  on  Question  5 195 

Fishery  commissions 

British-American  Commission 


Duties  150 

Expenses  151 


652 


INDEX 


PAGE 

Members,  expert  specialists  150,173 

Permanent  176 

Canadian  Commission  175 

Newfoundland  Commission  175 

Fishery  regulations 

British  161,174 

Canadian  174 

Newfoundland  174 

International  servitude,  doctrine  of 159 

Maps  opposite  194 

Memoranda 

American  memorandum  of  September  12,  1906 209 

British  memorandum  of  September  25,  1906 210 

Origin  of  dispute  141 

Questions  before  the  tribunal 

1.  Common  rights  and  liberties  in  fisheries;  justification  of  the  parties 142,  148,  156 

2.  Rights  of  United  States  inhabitants  to  employ  persons  not  inhabitants  of  the 

United  States  144,  149,176 

3.  Liberties  of  United  States  inhabitants  to  be  curtailed  by  payment  of  harbor 

or  other  dues,  etc 144,  149,178 

4.  Restrictions  of  privileges  of  United  States  inhabitants  with  regard  to  shelter, 

repairs,  etc 144,149,180 

5.  Limits  of  bays,  creeks,  harbors,  etc 145,  150,  181 

6.  Liberty  of  United  States  inhabitants  to  fish  off  coasts  of  southern  or  northern 

Newfoundland  or  Magdalen  Islands 146,150,190 

7.  Commercial  privileges  of  United  States  fishing  vessels  on  treaty  coasts. ..  146,  150,  192 

Resolution  of  the  United  States  Senate  of  February  18,  1909 219 

Territorial  jurisdiction  in  regard  to  bays 185 

Three-mile  rule  181  et  jeg. 

Syllabus  141 

Tribunal 

Competence  148 

Composition  151 

Language  154 

Meeting  153 

Procedure  152 

Recommendations  to  the  parties 151,173,174 

Sessions  142 

North  8ea  or  Dogger  Bank  Cane  (Great  Britain  vs.  Kussla) 

Agreement  for  inquiry,  November  12/25,  1904 

English  translation  410 

French  text  614 

Supplementary  protocol  of  November  12/25,  1904 

English  translation  412 

French  text  615 

Aldebaran,  the,  Swedish  vessel  fired  upon  by  vessel  of  the  Russian  squadron 405 

Bakan,  the,  vessel  which  warned  the  Russian  squadron  of  the  proximity  of  Japanese 

torpedo  boats  404 

Commissioners 

Beaumont,  Admiral  Lewis  410 

Davis,  Admiral  Charles  Henry 410 

Doubassoff,,  Admiral  410 

Fournier,  Admiral  410 

Spaum,  Admiral  410 

Commission  of  inquiry 

Composition  411 

Expenses  412 

Meeting  411 

Procedure  411 

Sessions  403 

Dogger  Bank,  fishing  ground  of  Hull  trawlers note,  406 


INDEX 


653 


PAGE 

Hull  fishing  fleet 

Location  410 

Mistaken  for  Japanese  torpedo  boats  and  fired  upon  by  Russian  squadron ...  .407  e< 

Damages  408,  410 

Killed  and  wounded  408,410 

Naval  regulations  observed  by 406 

Vessels  of  the  fleet 408 

Japanese  torpedo  boats,  rumors  concerning 404 

Questions  before  the  commission 410 

Report  of  the  commission,  February  26,  1905 

English  translation  404 

French  text  609 

Rojdestvensky,  Admiral,  commander  in  chief,  Russian  squadron 404 

Orders  of  404,  406,  407 

Russian  squadron 

Coaling  at  Cape  Skagen 404 

Warned  of  proximity  of  Japanese  torpedo  boats 404 

Set  sail  for  Far  East 405 

Mistook  Hull  fishing  vessels  for  Japanese  torpedo  boats  and  fired  upon  them. . . .407  et  seq. 

Vessels  of  the  sqnadron  405 

Syllabus  403 

Norway.  See  also  Sweden  and  Norway. 

Arbitration:  Grisbadarna  Case  (Norway  vs.  Sweden) 121 

Nufiez,  Jos6  R.,  signed  additional  articles  of  Grell  concessions  contract,  Orinoco 

Steamship  Company  Case  260 

Oldberg,  E.,  Swedish  appointee,  boundary  commission  of  1897,  Grisbadarna  Case....  137 

Olsen,  Hroar,  Norwegian  appointee,  boundary  commission  of  1897,  Grisbadarna  Case..  137 

Opinions 

Bainbridge,  William  E.,  in  original  Orinoco  Steamship  Company  Case  before  claims 

commission  of  1903  240 

Dissenting  opinions 

Drago,  Luis  M.,  on  Question  5,  North  Atlantic  Coast  Fisheries  Case 193,  195 

Motono,  Itchiro,  Japanese  House  Tax  Case  84 

Grisanti,  Carlos  F.,  in  original  Orinoco  Steamship  Company  Case  before  claims 

commission  of  1903  243 

Wadsworth,  William  Henry,  in  original  Pious  Fund  Case  before  claims  commission 

of  1868  17 

Zamacona,  Manuel  Maria  de,  in  original  Pious  Fund  Case  before  claims  commission 

of  1868  22 

Orinoco  Steamship  Company  Case  (United  States  vs.  Venezuela) 

Agreement  for  arbitration,  February  13,  1909 

English  text  235 

Spanish  text  SOS 

Arbitrators 

Beernaert,  Auguste  M.  F 227,  229 

I.ammasch,  H.,  umpire  ..227,  229,234 

Quesada,  Gonzalo  de  227,  229 

Award  of 

Dr.  Barge,  in  original  case  before  claims  commission  of  1903,  February  22,  1904.  255 

Tribunal,  October  25,  1910 

English  official  translation  .*. . . 228 

Final  conclusions  234 

French  text  504 

Civil  codes 

French  code.  Article  1690  250 

Venezuelan  code.  Articles  1496,  1883,  1888  249,250 


654 


INDEX 


PAGE 

Claimant,  the  Orinoco  Steamship  Company  227,  236 

Claims  commission  of 

1866  236 

1903  (see  Venezuelan  Preferential  Case) 230 

Commissioners 

Bainbridge,  William  E 240 

Barge,  Charles  Augustinus  Henri,  umpire  255 

Grisanti,  Carlos  F 243 

Claims  convention  of  February  17,  1903  (see  Venezuelan  Preferential  Case) 230 

Decrees,  Venezuelan 

1893,  July  1,  Article  1 253 

1900,  October  5,  Articles  1,  2 254,  261 

Financial  code,  Venezuelan 

Law  xviii.  Article  1 248 

Law  xxxiii.  Articles  1,  6,  12 249 

Grell,  Ellis,  concessions  contract  between  Venezuela  and 258 

Opinion  in  original  case  before  claims  commission  of  1903  of 

Bainbridge,  William  E 240 

Grisanti,  Carlos  F 243 

Origin  of  the  claim  236 

Orinoco  River 

Monopoly  of  navigation  253,259 

Annulled  254 

Orinoco  Shipping  and  Trading  Company 

Claims  of  231,  232,  233,  234,  244,  256 

Merged  into  the  Orinoco  Steamship  Company  240 

Possessor  of  Grell  contract  241 

Orinoco  Steamship  Company  claims  submitted  to  the 

Claims  commission  of  1903  227 

Tribunal  for  reexamination  230,  236 

Questions  before  the  tribunal  229,  236 

Secretary  of  the  tribunal  234 

Syllabus  226 

Tribunal 

Competence  227,  236 

Composition  237 

Expenses  238 

Language  237 

Meeting  239 

Procedure  239 

Sessions  227 

Pacific  settlement  of  International  disputes.  See  Hague  Conventions,  etc. 

Pefia,  Dond  Gerlrudis  de  la,  founder  of  the  Pious  Fund,  Pious  Fund  Case 39 

Peru 

.‘\rbitration : Canevaro  Case  284 


Peruvian  laws.  See  Canevaro  Case. 


Plerolo,  Decree  of,  December  12.  1880,  Canevaro  Case 287 

Pious  Fund  Case  (Mexico  vs.  United  States) 

Agreement  for  arbitration,  May  22,  1902 

English  text  7 

Spanish  text  432 

Annuities  2,  3,  6 

Arbitrators 

Asser,  T.  M.  C.,  Mexican  appointee 2,  4,  7 

Fry,  Sir  Edward,  United  States  appointee  2, 3, 7 


INDEX 


655 


PAGE 

Martens,  F.,  United  States  appointee  2, 3, 7 

Matzen,  Henning,  umpire  and  president  of  the  tribunal  2,  4, 7 

Savornin  Lehman,  Jonkheer  A.  F.  de,  Mexican  appointee 2,4,7 

Award  of 

Sir  Edward  Thornton,  umpire  in  original  case  before  claims  commission  of  1868, 

November  11,  1875  48 

Amendment  53 

Tribunal,  October  14,  1902 

English  translation  3 

Final  conclusions  6 

French  text  429 

Claimants 

Alemany,  Joseph,  Archbishop  of  San  Francisco 7,48 

Amat,  Thaddeus,  Bishop  of  Monterey 7,48,53 

Claims  commission  of  1868 

Commissioners  13 

Thornton,  Sir  Edward,  umpire  1,2,4,6,48,53 

Wadsworth,  Willian  Henry  17 

Zamacona,  Manuel  Maria  de 22 

Claims  convention  of  July  4,  1868 

English  text  12 

Spanish  text  437 

Opinion  in  origrinal  case  before  claims  commission  of  1868  of 

Wadsworth,  William  Henry  17 

Zamacona,  Manuel  Maria  de 22 

Origin  of  claim  1 

Pious  Fund,  founders  of  the 

Aniage,  Don  Nicolas  de 39 

Borja,  Dona  Maria  de 39 

Caballero,  Don  Juan  39 

Forres  de  Rada,  Marchioness  de 39 

Luyando,  Juan  Maria  de  39 

Pena,  Doni  Gertrudis  de  la 39 

Velasco,  Don  Luis  de 39 

Villa  Puente,  Marquis  de  39 

Questions  before  the  tribunal  2, 4,  8 

Res  judicata  rule,  applicability  2,  4,  6,  8 

Society  of  Jesus,  donations  made  to  the  1 

Syllabus  1 

Tribunal 

Competence  8 

Composition  9 

Expenses  12 

Language  12 

Meeting  11 

Procedure  9 

Sessions  2 

Planches,  E.  Mayor  des,  as  plenipotentiary  of  Italy,  signed  claims  convention  of 

February  13,  1903,  Venezuelan  Preferential  Case  70,  73 

Poincar6,  R.,  as  plenipotentiary  of  France,  signed  agreement  of  April  4,  1912, 

Carthage  and  Manouba  Cases  340 

Porras,  Don  Meliton  F.,  signed,  for  Peru 

Agreement  for  arbitration,  Canevaro  Case  294,  295 

Note  of  April  27,  1910,  Canevaro  Case 296 

Portugal 

Arbitration:  Island  of  Timor  Case  354 


Preferential  claims.  See  Venezuelan  Preferential  Case. 


656 


INDEX 


PAGE 

Presidents  of  the  tribunals.  See  also  Umpires. 

Canevaro  Case,  Louis  Renault  284,286,294 

Carthage  Case,  Knut  Hjalmar  Leonard  Hammarskjold  329,  330,  331,  336,  340 

Grisbadarna  Case,  J.  A.  Loeff  121,122,133 

Manouba  Case,  Knut  Hjalmar  Leonard  Hammarskjold  342,  343,351 

North  Atlantic  Coast  Fisheries  Case,  H.  Lammasch  142,  155,  193 

Pious  Fund  Case,  Henning  Matzen  2,  4,  7 

Savarkar  Case,  Auguste  M.  F.  Beernaert  275,  276 

Venezuelan  Preferential  Case,  Nicolas  V.  Mourawieff 56,57,  61 

“Procis-verbal”  of  regrets.  May  29,  1909,  Casablanca  Case 

English  translation  120 

French  text  485 

Protocols.  See  Conrentions,  protocols,  treaties,  etc. 

Puerto  Cabello  customs  receipts.  See  Venexuelan  Preferential  Case. 

Quesada,  Gonsalo  de,  arbitrator,  Orinoco  Steamship  Company  Case 227,  229 

tjuestions  before  the  tribunals.  See  under  each  case. 

RatiUcatlons  of  the  Hague  Conventions  for  the  paciflc  settlement  of  International 
disputes 

1899  Convention  cii 

1907  Convention  civ 

Reid,  IVhitelaw,  signed,  for  the  United  States,  modus  z’ivendi  of 

1906,  October  6/8,  North  .Atlantic  Coast  Fisheries  Case 209 

1907,  September  4/6,  North  .Atlantic  Coast  Fisheries  Case  213 

1908,  July  15/23,  North  .Atlantic  Coast  Fisheries  Case 215 

1909,  July  22/September  8,  North  .Atlantic  Coast  Fisheries  Case 220 

Renault,  Louis 
Arbitrator 

Carthage  Case  329,  331,  340 

Casablanca  Case  110,  111 

Japanese  House  Tax  Case  77,79,84 

Manouba  Case  342,  343 

Savarkar  Case  275,276 

President  of  the  tribunal 

Canevaro  Case  284,286,294 

Signed,  for  France, 

.Agreement  for  .Arbitration 

Carthage  Case  338 

Manouba  Case  353 

Tavignano,  Camouna  and  Gaulois  Cases  421 

Definitive  agreement  of  May  2,  1913,  Tat-ignano,  Camouna  and  Gaulois  Cases 421 

Reports  of  conunlssions  of  inquiry 
North  Sea  or  Dogger  Bank  Case 

English  translation  404 

French  text  609 

Tabular  statement  of  423 

Tavignano,  Camouna  and  Gaulois  Cases 

English  translation  413 

French  text  616 

Reservations  to  the  Hague  Conventions  for  the  paelflc  settlement  of  International 
disputes 

1899  Convention  ciii 

1907  Convention  cv 


INDEX 


657 


PAGE 

"Res  Judicata,"  applicability  to  Pious  Fund  claim 2,  4,  6,  8 

Resolution  of  the  United  States  Senate,  February  18,  1909,  North  Atlantic  Coast 

Fisheries  Case  219 

Rey,  Francis,  secretary  to  the  agent  for  Russia  before  the  tribunal,  Russian  In- 
demnity Case  299 

Rlbeiro,  Frnesto  Rodolpho  Hintze,  as  plenipotentiary  of  Portugal,  signed 

Agreement  of  June  10,  1893,  Island  of  Timor  Case 395 

Declaration  of  July  1,  1893,  Island  of  Timor  Case 396 

Ricci-Busatti,  Arturo,  agent  for  Italy  before  the  tribunal 

Carthage  Case  331 

Manouba  Case  344 

Rleck,  A.,  Norwegian  appointee,  boundary  commission  of  1897,  Grisbadarna  Case....  137 

Rifaat,  Pasha,  as  plenipotentiary  of  Turkey,  signed  agreement  for  arbitration,  Rus- 
sian Indemnity  Case  32S,  328 

R5eU,  Jonkheer  W.,  secretary  of  the  tribunal 

Carthage  Case  336 

Grisbadarna  Case  133 

Manouba  Case  351 

Russian  Indemnity  Case 299,  323 

, Roguin,  Ernest,  counsel  for  Turkey  before  the  tribunal,  Russian  Indemnity  Case....  299 

Rojdestvensky,  Admiral,  commander  in  chief  of  the  Russian  squadron.  North  Sea 

or  Dogger  Bank  Case  404,406,407 

Roman  Catholic  Church  of  California,  claims  of  prelates  of  the.  See  Pious 
Fund  Case. 

Romero,  M.,  as  plenipotentiary  of  Mexico,  signed  claims  conventions  of  July  4,  1868, 

Pious  Fund  Case  13,  17 

Root,  Elihu,  signed 

Agreement  for  arbitration.  North  Atlantic  Coast  Fisheries  Case 155 

American  note  of  January  27,  1909,  North  Atlantic  Coast  Fisheries  Case 216 

Rossolato,  Mr.,  special  attorney  for  Russian  citizens  before  the  tribunal,  Russian 

Indemnity  Case  304 

Ruspoli,  M.,  as  plenipotentiary  of  Italy,  signed  agreement  of  April  4,  1912,  Carthage 

and  Manouba  Cases  340 

Russia,  Emperor  of,  appointed  arbitrators,  Venezuelan  Preferential  Case 56,  57,  63 

Russia 

Arbitration:  Russian  Indemnity  Case  297 

Case  before  Hague  commission  of  inquiry:  North  Sea  or  Dogger  Bank  Case 403 

Russian  Indemnity  Case  (Russia  vs.  Turkey) 

Agents  before  the  tribunal 

Clunet,  Edouard,  for  Turkey 299 

Fromageot,  Henri,  for  Russia  ' 299 

Agreement  for  Arbitration,  July  22/August  4,  1910 

English  translation  324 

French  text  551 

Agreements,  other 

1878,  January  19/31,  excerpt 303 


658 


INDEX 


PAGE 

1878,  February  19/March  3,  preliminaries  of  peace,  Article  19 303 

1879,  January  27/February  8,  treaty  of  peace.  Article  5 304,324 

Arbitrators 

Ahmed  Rechid  Bey,  Turkish  appointee 297,  299 

Herante  Abro  Bey,  Turkish  appointee 297,299 

Lardy,  Charles  Edouard,  umpire 297,298,  323 

Mandelstam,  Andre,  Russian  appointee 297,299 

Taube,  Baron  Michel  de,  Russian  appointee 297,  298 

Attorney  for  Russian  citizens  before  the  tribunal,  special 

Rossolato,  Mr 304 

Award  of  the  tribunal,  November  11,  1912 

English  translation  298 

Final  conclusion  302,  323 

French  text  S32 

Qaimants:  Russian  citizens  297,300,303,  304 

Qaims  for  damages  sustained  by  Russian  citizens  during  Russo-Turkish  war  of 

1877-78  297,  300,  303,  304 

Contentions 

Russian  301 

Turkish  300 

Counsel  before  the  tribunal 


Hesse,  Andre,  for  Turkey  

Roguin,  Ernest,  for  Turkey 

Youssouf,  Kimal  Bey,  for  Turkey 

Indemnities  

Interest-damages  

Moratory  interest  

Payments  

Origin  of  claim  

Questions  before  the  tribunal 

Secretaries  of  the 


299 

299 

299 

.297-328 

297-328 

298,  305-323,  325 

302,  305,  306,  307,  308,  324 

297,  301 

298,  300,  326 


Agents  before  the  tribunal 

Campinchi,  C.,  secretary  of  the  Turkish  agent 299 

Rey,  Francis,  secretary  of  the  Russian  agent 299 

Tribunal 

Roell,  Jonkheer  W 299,323 

Verduynen,  Michiels  van  299,  323 

Syllabus  354 

Tribunal 

Competence  326 

Composition  325 

Expenses  328 

Language  327 

Meeting  299,300,326 

Procedure  299,326,  327 

Sessions  297 


Russian  Squadron,  attnok  upon  Hull  Ashing  Aeet.  See  North  Sea  or  Dogger 
Bank  Case. 


Sanchez,  M.  A.,  Grell  contract  transferred  to,  Orinoco  Steamship  Company  Case. ..  .258,  260 


Savarkar  Case  (France  vs.  Great  Britain) 

Agents  before  the  tribunal 

Crowe,  Eyre,  for  Great  Britain 277 

Weiss,  Andri,  for  France .^. ...  277 

Agreement  for  arbitration,  October  25,  1910 

English  text  280 

French  text  S19 

Supplementary  notes  of  October  25,  1910 

English  text  282 

French  text  320 


INDEX 


659 


FACE 

Arbitrators 

Beernaert,  Auguste  M.  E.,  president  of  the  tribunal 275,  276 

Desart,  Lord  275,276 

Gram,  Gregers  275,  276 

Renault,  Louis  275,  276 

Savornin  Lohman,  Jonkheer  A.  F.  de 275,  276 

A.ward  of  the  tribunal,  February  24,  1911 

English  text  276 

Final  conclusion  280 

French  text  516 

Morea,  the,  British  vessel  from  which  Savarkar  escaped 277  et  seq. 

Origin  of  dispute  275 

Question  before  the  tribunal 276,  280 

Savarkar,  Vinayak  Damodar,  Hindoo  prisoner  on  board  the  British  vessel  Morea. .. . 277 

Escape  from  the  vessel 277,278 

Arrest  by  French  police 277,  278 

Return  to  the  vessel  by  French  police 278 

Demand  of  France  for  restitution  of 275 

Syllabus  280 

Tribunal 

Competence  281 

Composition  280 

Expenses  282,283 

Language  281 

Meeting  277,  281 

Procedure  281 

Sessions  275 


Savornin  Lohman,  Jonkheer  A.  F.  de,  arbitrator 

Muscat  Dhows  Case  93,95,  101 

North  Atlantic  Coast  Fisheries  Case 142,  155,  193 

Pious  Fund  Case  2, 4,  7 

Savarkar  Case  275,  276 

Schoning,  J.  M„  Norwegian  member.  Joint  Norwegian  and  Swedish  State  Council 

to  consider  protocol  of  March  15,  1904,  Grisbadarna  Case 136 

Scialoja,  Vittorio,  counsel  for  Italy  before  the  tribunal,  Canevaro  Case 286 

Secretaries  of  the  tribunals 
Roell,  Jonkheer  W. 

Carthage  Case  336 

Grisbadarna  Case  133 

Maneuba  Case  351 

Russian  Indemnity  Case  299,  323 

Verduynen,  Michiels  van 

Canevaro  Case  294 

Carthage  Case  - 336 

Casablanca  Case  117' 

Grisbadarna  Case  133 

Manouba  Case  351 

Orinoco  Steamship  Company  Case 234 

Russian  Indemnity  Case  299,  323 

Segrave,  Captain  James,  commissioner,  Tavignano,  Camouna  and  Gaulois  Cases....  415 

Selir,  Conde  de,  as  plenipotentiary  of  Portugal,  signed  agreement  of  October  1,  1904, 

Island  of  Timor  Case  400 


Seward,  William  H.,  as  plenipotentiary  of  United  States,  signed  claims  convention 

of  July  4,  1868,  Pious  Fund  Case 13,  17 

Signatures,  Hague  Convention  of  1907  for  the  pacific  settlement  of  international 

disputes  cv 


660 


INDEX 


PAGE 

Slave  Trade,  General  Act  of  Brussels  for  the  suppression  of  African,  extract,  Muscat 

Dhows  Case  104 

Sombron,  Captain,  commissioner,  Tavignano,  Camouna  and  Gaulois  Cases 415 

Spain 

Arbitration:  V'enezuelan  Preferential  Case  (Spain,  Venezuela  et  al.  z'i.  Germany, 

Great  Britain  and  Italy! 55 

Spanm,  Admiral,  commissioner.  North  Sea  or  Dogger  Bank  Case 410 

Stemburg,  Baron  Speck  von,  as  plenipotentiary  of  Germany,  signed 

Agreement  for  arbitration,  Venezuelan  Preferential  Case 62,64 

Claims  convention  of  February  13,  1903,  Venezuelan  Preferential  Case 65,67 

Strngetad,  O.  8.  J„  Norwegian  member.  Joint  Norwegian  and  Swedish  State  Council 

to  consider  protocol  of  March  15,  1904,  Grisbadarna  Case 136 

Sweden.  See  also  Sweden  and  Norway. 

Arbitration:  Grisbadarna  Case  (Sweden  t/j.  Norway) 121 

Sweden  and  Norway 

Arbitration:  Venezuelan  Preferential  Case  (Sweden  and  Norway,  Venezuela  et  al., 

vs.  Germany,  Great  Britain  and  Italy) 55 

Swinderen,  B.  de  Mareea  van,  as  plenipotentiary  of  the  Netherlands,  signed  agree- 
ment for  arbitration.  Island  of  Timor  Case 389 

Syllabi 

Canevaro  Case  284 

Carthage  Case  229 

Casablanca  Case  110 

Grisbadarna  Case  121 

Island  of  Timor  Case  354 

Japanese  House  Tax  Case 77 

Manouba  Case  341 

Muscat  Dhows  Case  93 

North  Atlantic  Coast  Fisheries  Case 141 

North  Sea  or  Dogger  Bank  Case 403 

Orinoco  Steamship  Company  Case : 226 

Pious  Fund  Case  1 

Russian  Indemnity  Case  297 

Savarkar  Case  275 

Tavignano,  Camouna  and  Gaulois  Cases 413 

Venezuelan  Preferential  Case  55 

Tabular  statement  of  awards  and  reports 423 

Tanbe,  Baron  Michel  de,  arbitrator 

Carthage  Case  329,  331,  340 

Manouba  Case  342,343 

Russian  Indemnity  Case  297,298 

“Tavignano,’'  “Camouna”  and  “Oaulois”  Cases  (France  vs.  Italy) 

Agreement  for  inquiry.  May  20,  1912 

English  translation  417 

French  text  617 

Italian  text  617 

Agreements,  other 

1912,  April  IS,  preliminary  agreement  for  inquiry 

Englbh  translation  419 

French  text  621 

1912,  November  8,  compromis  of  arbitration 

English  translation  419 

French  text  621 


INDEX 


661 


PAGE 

1913,  May  2,  definitive  agreement  settling  the  controversy 

English  translation  421 

French  text  623 

Camouna,  the,  Tunisian  mahone  attacked  by  the  Italian  torpedo  boat  Canopo. . 413,  417,  420 

Canopo,  the,  Italian  torpedo  boat,  attack  upon  Tunisian  mahones 413,417,420 

Commission  of  inquiry 

Composition  417 

Conclusion  not  final  414,415 

Expenses  418 

Language  418 

Meeting  418 

Proces-verbaux  420 

Commissioners 

Segrave,  Captain  James  415 

Sombron,  Captain  415 

Zerbi,  Captain  Guiseppe  Genoese 415 

Contentions 

French  413 

Italian  413 

Fulmine,  the,  Italian  torpedo  boat,  seizure  of  the  Tavignano  by 413,417 

Gaulois,  the,  Tunisian  mahone  attacked  by  the  Italian  torpedo  boat  Canopo 413,417 

Indemnity  for  damages  sustained  by  French  citizens  paid  by  Italy 413 

Maps  opposite  416 

Origin  of  the  disputes 413 

Questions  before  the 

Commission  417,  419 

Tribunal  420 

Settled  out  of  court 421 

Report  of  the  commission,  July  23,  1912 

English  translation  413 

French  text  616 

Secretaries  to  assist  the  commission 418 

Syllabus  413 

Tavignano,  the,  French  steamer  seized  by  the  Italian  torpedo  boat  Fulmine. . .413,  417,  419 

Tribunal 

Competence  420 

Meeting  421 

Procedure  420 

Tcharykow,  N.,  as  plenipotentiary  of  Russia,  signed  agreement  for  arbitration,  Rus- 
sian Indemnity  Case  325,328 


Territorial  jurisdiction.  See  North  Atlantic  Coast  Fisheries  Case. 


Thornton,  Sir  Edward,  umpire  in  original  Pious  Fund  Case  before  claims  commission 
of  1868 

Award  of,  November  11,  1875 48 

Amendment  53 

Thouvenel,  E.,  as  plenipotentiary  of  France,  signed  Declaration  of  March  10,  1862, 
between  France  and  Great  Britain,  respecting  the  independence  of  the  Sultans  of 
Muscat,  Muscat  Dhows  Case 103 


Timor.  See  Island  of  Timor  Case. 

Treaties.  See  Conventions,  protocols,  treaties,  etc. 

Trolle,  Eric  Birger,  as  plenipotentiary  of  Sweden,  signed  agreement  for  arbitration. 


Grisbadarna  Case  133,135 

Turkey 

Arbitration : Russian  Indemnity  Case  (Turkey  vs.  Russia) 297 


662 


INDEX 


PAGE 

Umpires.  See  also  Presidents  of  the  tribnnsis. 

Casablanca  Case,  Knut  Hjalmar  Leonard  Hammarskjold 110,112,117 

Japanese  House  Tax  Case,  Gregers  Gram 77,  79,84 

Muscat  Dhows  Case,  H.  Lammasch 93,  95,  101 

Orinoco  Steamship  Company  Case 

Charles  Augustinus  Henri  Barge,  umpire  in  original  case  before  claims  commis- 
sion of  1903  255 

H.  Lammasch,  umpire  in  case  before  the  tribunal 227-230,234,  236,255 

Pious  Fund  Case 

Henning  Matzen,  umpire  and  president  of  the  tribunal 2,4,7 

Sir  Edward  Thornton,  umpire  in  original  case  before  claims  commission  of  1868..  48,  53 
Russian  Indemnity  Case,  Charles  Edouard  Lardy 297,298,323 

United  States 
Arbitrations 

North  Atlantic  Coast  Fisheries  Case  (United  States  vs.  Great  Britain) 141 

Pious  Fund  Case  (United  States  vs.  Mexico) 1 

Orinoco  Steamship  Company  Case  (United  States  vs.  Venezuela) 226 

Venezuelan  Preferential  Case  (United  States,  Venezuela  et  al.  vs.  Germany,  Great 

Britain  and  Italy) 55 

Telasco,  Don  Unis  de,  founder  of  the  Pious  Fund,  Pious  Fund  Case 39 

Venezuela 

Arbitrations 

Orinoco  Steamship  Company  Case  (Venezuela  vs.  United  States) 226 

Venezuelan  Preferential  Case  (Venezuela  et  al.  vs.  Germany,  Great  Britain 

and  Italy)  55 

Civil  code.  Articles  1496,  1883,  1888,  Orinoco  Steamship  Company  Case 249,  250 

Decrees,  Orinoco  Steamship  Company  Case 

1893,  July  1,  Article  1 253 

1900,  October  5,  Articles  1,  2 254,  261 

Financial  code,  Orinoco  Steamship  Company  Case 

Law  xviii,  .Article  1 248 

Law  xxxiii.  Articles  1,  6,  12 : 249 

Venezuelan  Preferential  Case  (Germany,  Great  Britain  and  Italy  vs.  Venezuela, 
Belgium,  Mexico,  the  Netherlands,  Spain,  Sweden  and  Norway,  and  the 
United  States) 

Agreement  for  arbitration.  May  7,  1903,  between 
Germany  and  Venezuela 

Adhesions  54 

English  text  62 

German  text  445 

Great  Britain  and  Venezuela  note  1,  62 

Italy  and  Venezuela note  1,  62 

Arbitrators,  appointed  by  the  Emperor  of  Russia 56,67,  63 

Lammasch,  H 56,  57,  61 

Martens,  F 56,57,61 

Mourawieff,  Nicolas  V.,  president  of  the  tribunal 56,57,61 

Award  of  the  tribunal,  February  22,  1904 

English  text  56 

Final  conclusions  51 

French  text  441 

Blockade  of  Venezuelan  ports 55 

Blockading  Powers  55 

Claims  against  Venezuela  55 

Claimant  Powers  55,  56 

Payment  of  55,  58,  66,  69,  72,  76 

Uncontested  50 

Claim  commissions 
British  commission 

Competence  58 

Composition  58 


INDEX 


663 


PAGE 

German  commission 

Competence  66 

Composition  66 

Italian  commission 

Competence  71 

Composition  71, 72 

United  States  commission 

Competence  74 

Composition  74 

Expenses  73 

Meeting  74 

Procedure  75 

Claims  conventions  between  Venezuela  and 

Belgium,  March  7,  1903 note,  74 

France,  February  27,  1903  note,  74 

Germany,  February  13,  1903 

English  text  65 

German  text  447 

Great  Britain,  February  13,  1903 67 

Interpretation  of  73 

Italy,  February  13,  1903  70 

Mexico,  February  26,  1903 note,  74 

Netherlands,  February  28,  1903 note,  74 

Spain,  April  2,  1903  note,  74 

Sweden  and  Norway,  March  10,  1903 note,  74 

United  States,  February  17,  1903 

English  text  74 

Spanish  text  449 

Customs  receipts  of  La  Guaira  and  Puerto  Cabello  to  be  used  for  payment  of 

claims  55,58,66,69,  72,  76 

Equality  of  treatment  in  the  payment  of  claims  demand  of 

Neutral  Powers  60 

Venezuela  55 

External  debt  of  Venezuela  67,69,  72 

Origin  of  the  case  55 

Preferential  treatment  in  the  payment  of  claims  demand  of  blockading  Powers 59 

Questions  before  the  tribunal 58,  62 

Syllabus  55 

Tribunal 

Competence  58 

Composition  63 

Expenses  61,63 

Language  63 

Meeting  57,  63 

Procedure  63 

Sessions  56 

Verduynen,  Mlchiels  van,  secretary  to  the  tribunal 

Canevaro  Case  294 

Carthage  Case  336 

Casablanca  Case  117 

Grisbadarna  Case  133 

Manouba  Case  351 

Orinoco  Steamship  Company  Case 234 

Russian  Indemnity  Case  299,  323 

Villa  Puente,  Marquis  de,  founder  of  the  Pious  Fund,  Pious  Fund  Case 39 

Visit  and  search 

Carthage  Case  333 

Manouba  Case  346,347 


664 


INDEX 


PAGE 

Vogt,  Paul  BeHjamin  ^ j m 

As  plenipotentiary  of  Norway,  signed  agreement  for  arbitration,  Grisbadarna  Case..  133,  135 
Norwegian  member.  Joint  Norwegian  and  Swedish  State  Council  to  consider  protocol 
of  March  15,  1904,  Grisbadarna  Case 

Wadsworth,  William  Henry,  commissioner,  original  Pious  Fund  Case  before  claims 
commission  of  1868,  opinion  

Weiss,  Andr6,  agent  for  France  before  the  tribunal,  Casablanca  Case 112 


Westring,  H.  G. 

Signed  Royal  Resolution  of  March  26,  1904,  Grisbadarna  Case 

Swedish  appointee,  boundary  commission  of  1897,  Grisbadarna  Case..... 

Swedish  member.  Joint  Norwegian  and  Swedish  State  Council  to  consider  protocol 
of  March  15,  1904,  Grisbadarna  Case 


Tonssouf  K6mai  Bey,  counsel  for  TurKey  before  the  tribunal,  Russian  Indemnity 
Case  

Zamacona,  aianuel  Maria  de,  commissioner,  original  Pious  Fund  Case  before  claims 
commission  of  1868,  opinion 


Zerbi,  Captain  Gniseppe  Genoese,  commissioner,  Tavigtiano,  Camouna  and  Gauloii 
Cases  


415 


( 


I 


o 


/ 


># 


